ENGROSSED
COMMITTEE SUBSTITUTE
for
H. B. 4457
(By Delegates Brown, Talbott, Fragale, Caputo,
Hatfield, Wells, Fleischauer, Marshall and Perdue)
(Originating in the Committee on the Judiciary.)
[February 19, 2010]
A BILL to amend and reenact §29-1-8a of the Code of West
Virginia,1931, as amended; to amend and reenact §37-13A-1,
§37-13A-2 and §37-13A-5 of said code; to amend said code by
adding a new section, designated §37-13A-7; and to amend and
reenact §61-8-14 of said code, all relating to the access to
and protection of cemeteries; clarifying procedures for
protection of graves and burial sites; clarifying requirements
and procedures for access to cemeteries and grave sites
located on private land; clarifying conduct subject to
criminal sanctions as it relates to the crime of disinterment
of a dead body or damage to a cemetery.
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 §37-13A-1, §37-13A-2 and §37-13A-5
of said code be amended and reenacted; that said code be amended by
adding a new section, designated §37-13A-7; and that §61-8-14 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 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"
includes the federal and state governments and
any political subdivision of this state 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
shall is not
be 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
shall is not
be 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, 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,
and
may be imprisoned confined in
the county jail for
not less than ten
days nor not more than six months, or both fined and
imprisoned
confined.
(3) A person who, either by himself
or herself or through an
agent, intentionally excavates, removes, destroys or otherwise
disturbs human skeletal remains 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 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
confined in the state
penitentiary imprisoned in a state correctional facility not
less
than two nor 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,
and may
be imprisoned in the county or confined in jail not more than ten
days,
or both fined and confined.
(2) No person may offer for sale or exchange any human
skeletal remains, grave artifact or grave marker obtained in
violation of this section.
(5) A person who, either by himself
or herself or through an
agent, 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
and may be
imprisoned in the county or confined in jail not
less than six
months nor more than one year,
or both fined and confined.
(3) (6) Each instance of excavation, removal, destruction,
disturbance or offering for sale or exchange under
subdivisions
(1),
and (2) through (5) of this subsection shall constitute a
separate offense.
(7) It is a complete defense in a prosecution under this section if the defendant can prove by a preponderance of evidence
that the alleged acts were accidental or inadvertent and that
reasonable efforts were made to preserve the remains accidentally
disturbed or discovered, and that the accidental discovery or
disturbance was properly reported.
(8) 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. --
Within forty-eight hours of 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 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 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 in developing the permit conditions.
Such 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 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) Forfeiture of any and all equipment used in disturbing the
protected unmarked graves or grave markers;
(ii) Any and all costs incurred in cleaning, restoring,
analyzing, accessioning and curating the recovered material;
(iii) 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) Any and all costs associated with restoring the land to
its original contour or the grave marker to its original condition;
(v) Any and all costs associated with reinterment of the human skeletal remains; and
(vi) 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 13A. GRAVES LOCATED UPON PRIVATELY OWNED LANDS.
§37-13A-1. Access of certain persons to cemeteries and graves
located on private land.
(a) For the purposes set forth in section two of this article,
the State recognizes that the owners of private land on which a
cemetery or graves are located have a duty to allow ingress and
egress to the cemetery or graves by family members, close friends
and descendants of deceased persons buried there, by any cemetery
plot owner, or by any person engaging in genealogy research who has
given reasonable notice to the owner of record or to the occupant
of the property or to both the owner and occupant Any authorized
person who wishes to visit a cemetery or grave site located on
privately owned land and for which no public ingress or egress is
available, shall have the right to reasonable ingress or egress for
the purposes described in subsection (b) after providing the owner
of the privately owned land with reasonable notice as defined in
section two of this article.
(b) The right of access to cemeteries or grave sites provided
in subsection (a) shall be during reasonable hours and only for the
purposes of:
(1) Visiting graves;
(2) Maintaining the grave site or cemetery;
(3) Burying a deceased person in a cemetery plot by those granted rights of burial to that plot; and
(4) Conducting genealogy research.
(c) (1) The access route to the cemetery or grave site may be
designated by the landowner if no traditional access route is
obviously visible by a view of the property. If no traditional
access route is obviously visible by a view of the property, the
landowner is not required to incur any expense in improving a
designated access route.
(2) Any access route designated by the landowner must be safe
and usable by a class A motor vehicle as defined by section one,
article ten, chapter seventeen-A of this code.
(3) Unless the property owner has caused a traditional access
route to the cemetery or grave site to be unusable or unavailable,
the property owner is not required to make any improvements to
their property to satisfy the requirement of providing reasonable
ingress and egress to a cemetery or burial site pursuant to this
section.
(d) A property owner who is required to permit authorized
persons reasonable ingress and egress for the purpose of visiting
a cemetery or grave site and who acts in good faith and in a
reasonable manner pursuant to this section is not liable for any
personal injury or property damage that occurs in connection with
the access to the cemetery or grave site.
(e) Nothing in this section shall be construed to limit or
modify the power or authority of a court in any action of law or
equity to order the disinterment and removal of the remains from a cemetery and interment in a suitable location.
§37-13A-2. Definitions.
The right of ingress and egress granted to persons specified
in section one of this article shall be limited to the purposes of:
(1) visiting graves; (2) maintaining the grave site or cemetery;
(3) burying a deceased person in a cemetery plot by those granted
rights of burial to that plot; and (4) conducting genealogy
research.
In this article:
(1) "Authorized person" means:
(A) A family member, close friend or descendant of a deceased
person;
(B) A cemetery plot owner; or
(C) A person engaged in genealogy research.
(2) "Governmental subdivision" means any county commission or
municipality.
(3) "Reasonable ingress and egress" or "reasonable access"
means access to the cemetery or grave site within ten days of the
receipt of written notice of the intent to visit the cemetery or
grave site. If the property owner cannot provide reasonable access
to the cemetery or grave on the desired date, the property owner
shall provide reasonable alternative dates when the property owner
can provide access within five days of the receipt of the initial
notice.
(4) "Reasonable notice" means written notice of the date and
time the authorized person intends to visit the cemetery or grave site delivered to the property owner at least ten days prior to the
date of the intended visit.
§37-13A-5. Cause of action for injunctive relief.
(a) Any An authorized person denied reasonable access under
the provisions of this
section article, including the denial of
permission to use vehicular access, may institute a proceeding in
the 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
section two of
this article. In granting
such 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.
§37-13A-7. Existence of cemetery or grave site, notification.
If a governmental subdivision is notified of the existence of
a cemetery, or a marked grave site that is not located in a
dedicated cemetery, within its jurisdiction, the governmental
subdivision shall, as soon as is practicable, notify the owner of
the land upon which the cemetery or burial site is located of the
cemetery's or grave site's existence and location. The Governmental
subdivision shall, upon notification of grave site location,
document the location using GPS technology. Data collected shall be deposited with the Division of Culture and History. The
notification shall include an explanation of the provisions of this
article.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-14. Disinterment or displacement of dead body or part
thereof; damage to cemetery or graveyard; penalties;
damages in civil action.
(a) Any person who unlawfully
and intentionally disinters or
displaces a dead human body, or any part of a dead human body,
placed or deposited in any vault, mausoleum or any temporary or
permanent burial place,
removes personal effects of the decedent
removes or damages caskets, surrounds, outer burial containers, or
any other device used in making the original burial; transports
unlawfully removed human remains from the cemetery; or knowingly
receives unlawfully removed human remains from the cemetery is
guilty of a felony, and, upon conviction thereof, shall be confined
in
the penitentiary or other suitable a state correctional facility
for a determinate sentence of not
less than two nor more than five
years.
(b)(1) Any person who intentionally desecrates any
tomb, plot,
monument, memorial, or marker in a cemetery, or any gate, door,
fence, wall, post, or railing, or any enclosure for the protection
of a cemetery or any property in a cemetery, graveyard, mausoleum
or other designated human burial site is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than
$2,000.00, or confined in jail not more than one year, or both
fined and confined.
(2)
Any person who intentionally and without legal right
destroys, cuts, breaks, removes, or injures any building, statuary,
ornamentation, landscape contents, including a tree, shrub, flower,
or plant, within the limits of a cemetery, is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not more
than $2,000.00, or confined in jail not more than one year, or both
fined and confined.
(3) For the purposes of this subsection, "desecrate" means
destroying, cutting, mutilating, effacing, injuring, tearing down,
removing, defacing, damaging or otherwise physically mistreating in
a way that a reasonable person knows will outrage the sensibilities
of persons likely to observe or discover his or her actions.