§ 5097.5. — 5097.5. (Amended by Stats. 2010, Ch. 635, Sec. 1.)

(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.

Legislative History

Amended by Stats. 2010, Ch. 635, Sec. 1. (SB 1034) Effective January 1, 2011.