TITLE 4 CULTURAL RESOURCES
CHAPTER 10 CULTURAL PROPERTIES AND HISTORIC
PRESERVATION
PART 14 CULTURAL PROPERTIES ON PRIVATE
LAND AND MECHANICAL EXCAVATION
PERMITS
4.10.14.1 ISSUING AGENCY: Cultural
Properties Review Committee. Contact
State Historic Preservation Division, Department of Cultural Affairs.
[4.10.14.1 NMAC - Rp,
4.10.14.1 NMAC, 01/16/2019]
4.10.14.2 SCOPE: This
rule applies to all public and private entities proposing to excavate, with the
aid of mechanical earth-moving equipment, an archaeological site on private
land. This rule does not apply to state or federal lands or to lands held in
trust for an Indian tribe by the federal government.
[4.10.14.2 NMAC – Rp,
4.10.14.2 NMAC, 01/16/2019]
4.10.14.3 STATUTORY AUTHORITY: Section
18-6-10 NMSA 1978 and Section 18-6-11 NMSA 1978 of the Cultural Properties Act.
[4.10.14.3 NMAC – Rp, 4.10.14.3 NMAC, 01/16/2019]
4.10.14.4 DURATION: Permanent.
[4.10.14.4 NMAC – Rp,
4.10.14.4 NMAC, 01/16/2019]
4.10.14.5 EFFECTIVE DATE: January 16, 2019, unless a later date is cited at the end of a section.
[4.10.14.5 NMAC – Rp,
4.10.14.4 NMAC, 01/16/2019]
4.10.14.6 OBJECTIVE: This
rule describes procedures used to assist owners to preserve cultural properties
situated on privately owned land and the procedures and standards to excavate
an archaeological site on private land using mechanical earth-moving equipment.
[4.10.14.6 NMAC – Rp,
4.10.14.4 NMAC, 01/16/2019]
4.10.14.7 DEFINITIONS:
A. "Agent" means
an individual who is authorized by a written agreement with a private landowner
to act on behalf of the landowner and who works under the landowner's personal
and direct supervision.
B. "Archaeological investigation" means the study of archaeological sites,
isolates and areas of historic and scientific interest including without
limitation survey and inventory, examination, collection, limited tests, test
excavation, excavation and monitoring.
C. "Archaeological site” or "site" means a location where there exists
material evidence of the past life and culture of human beings in the state and
is the location of a significant event, a prehistoric or historic occupation or
activity, or a building or structure, whether standing, ruined or vanished,
where the location itself maintains historical or archaeological value
regardless of the value of any existing structure. An archaeological site
typically is 50 or more years old. Examples of archaeological sites include
without limitation campsites, habitation sites, ruins of buildings and
structures, artifact scatters, resource procurement or processing areas,
agricultural fields, locales with one or more features in association with
other cultural materials.
D. "Committee" or "CPRC" means the cultural properties
review committee, created pursuant to Section 18-6-4 NMSA 1978 of the
Cultural Properties Act.
E. "Cultural property" means a
structure, place, site or object having historic, archaeological, scientific,
architectural or other cultural significance.
F. "Excavation" means to systematically dig up artifacts, deposits or material remains
within the boundaries of an archaeological site, isolate or area of historic
and scientific interest using hand tools or mechanical earth-moving equipment.
G. "Historic preservation division" or "HPD" means the division
within the department of cultural affairs created pursuant to Subsection A of Section 18-6-8 NMSA 1978 of the Cultural Properties
Act.
H. "Human burial" or "unmarked human burial" means
a human body or human skeletal remains and includes any funerary object,
material object or artifact buried, entombed or sepulchered with that human
body or skeletal remains.
I. “Individual unmarked human burial excavation permit” is a permit issued by the CPRC with
the concurrence of the state archaeologist and the SHPO for the excavation of
unmarked human burials on state or private land. Individual unmarked human burial permits are
submitted with an application for a project-specific permit for excavation and
when unmarked human burials are known to exist within the project area.
J. “Material remains” means any tangible evidence of past human life or activities. Such evidence includes without limitation:
(1) naturally
occurring objects or raw materials extracted for use in the production of
human-made objects or for other uses by humans that can be found within an
archaeological site, or another context from which intended or actual human use
can be reasonably inferred;
(2) items
manufactured or modified by humans, including whole or fragmentary tools,
implements, containers, and other objects such as pottery, ceramics, basketry,
cordage, weavings, textiles, glassware, flaked stone, ground stone, pecked
stone, worked bone, metal, wood, hide, feathers and pigments;
(3) byproducts, waste products and debris resulting from the
manufacture or use of human-made items or from the human use of natural
materials;
(4) organic
material deposited through human actions, organic material remaining from the
decay of perishable objects manufactured or modified by humans, and organic
material deposited through natural processes when found within an
archaeological site including without limitation soil or sediment samples,
botanical and animal remains and coprolites; or
(5) human
remains including without limitation bone, mummified flesh, teeth, the remains
of cremations, any associated artifacts and objects, and the soil, sediments,
or other matrix in which the human skeletal or mummified remains and associated
artifacts and objects were deposited or are now associated.
K. "Mechanical earth-moving equipment" means any motorized machine or device that is
capable of displacing, disturbing or moving earth, soil, dirt or other deposits
or materials from including without limitation trenchers, backhoes, graders,
scrapers, bulldozers and front-end loaders.
L. “Mechanical
Excavation Permit” is a permit issued by the CPRC with the concurrence of
the state archaeologist and the SHPO for the excavation of archaeological sites
on private land using mechanical earth-moving equipment by someone other than
the landowner or his agent.
M. "Permit" means the written authorization required for all public and private
entities to conduct archaeological investigations of a particular kind, within
a defined geographic location and for a specified period of time.
N. "Preservation" means sustaining the existing form,
integrity, material or vegetative cover of a cultural property and includes
protective maintenance or stabilization.
O. "Protection" means safeguarding the physical condition or environment of an
archaeological site or historic structure or building from deterioration or
damage caused by weather or other natural, animal or human intrusions.
P. "Restoration" means recovering the general historic appearance of a cultural
property or the form and details of an object or structure by removing
incompatible natural or human-caused accretions and replacing missing elements
as appropriate.
Q. "State archaeologist" means the archaeologist designated pursuant
to Section 18-6-15 NMSA 1978 of the Cultural Properties Act.
R. "State historic preservation officer" or "SHPO" means the
individual appointed pursuant to Section 18-6-8 NMSA 1978 of the Cultural
Properties Act who serves as the director of the HPD.
S. "State register" means the New Mexico register of cultural
properties maintained by the CPRC for the purpose of recording cultural
properties deemed worthy of preservation.
T. "Unmarked burial ground" means a location where there exists a burial
or burials of any human beings that are not visibly marked on the surface of
the ground in any manner traditionally or customarily used for marking burials
and includes any funerary object, material object or artifact associated with
the burial or burials.
[4.10.14.7 NMAC – Rp,
4.10.14.7 NMAC, 01/16/2019]
4.10.14.8 PRESERVATION OF CULTURAL
PROPERTIES ON PRIVATE LAND:
A. The
CPRC and the SHPO offer technical assistance to owners of cultural properties
on private land with the purpose to:
(1) identify and register cultural properties worthy of
preservation on the state register;
(2) provide
advice to owners interested in the protection, rehabilitation, restoration or
maintenance of cultural properties on private land, including but not limited
to, state and federal income tax credit programs, the state historic
preservation loan fund and conservation easement programs; and
(3) ensure that archaeological investigations on private land
meet the highest professional standards; when requested by an owner, the
CPRC or the SHPO will review a proposal to conduct
archaeological investigations on private land and offer written comments.
B. If
evidence of a human burial or unmarked burial ground is discovered on private
land, local law enforcement shall be notified pursuant to 4.10.11 NMAC. The state archaeologist provides technical
assistance to landowners on notification and protection.
[4.10.14.8 NMAC – Rp,
4.10.14.8 NMAC, 01/16/2019]
4.10.14.9 PROCEDURES FOR A MECHANICAL
EXCAVATION PERMIT: The CPRC issues, with the concurrence of the state archaeologist and
the SHPO, permits to use mechanical earth-moving equipment in the excavation of
an archaeological site on private land when a public or private entity other
than the landowner or the agent of the landowner proposes to conduct
excavation. An individual unmarked human
burial excavation permit shall be obtained concurrently with a mechanical
excavation permit unless the site is historic and burials are unlikely. Individual unmarked human burial permits are
issued under 4.10.11 NMAC.
A. For purposes of this rule, the CPRC or the SHPO may
require an individual who purports to be a landowner's agent to provide a copy
of the written agreement with the landowner indicating that the individual is
authorized to act on the behalf of the landowner, and that the individual works
or will work under the landowner's personal and direct supervision. The CPRC or the SHPO may request additional
information from the landowner or the individual regarding the individual's
authority and the landowner's right to control the individual's
activities. The CPRC and the SHPO will
use all this information to determine whether the relationship between the
landowner and the individual who is using or will be using mechanical
earth-moving equipment to excavate on private land, is one of principal and
agent.
B. Any public or private entity may obtain mechanical
excavation permit application forms and instructions for filing the application
and attachments from HPD's website or may request them from HPD. The application shall contain the following
information:
(1) applicant
name, mailing address, telephone number and email address; and
(2) signature of
the applicant, title of the applicant and date, which may be submitted with
original signature, signature transmitted by facsimile, or a scanned
application with the original signature transmitted by email; by virtue of the
submission of the application, the applicant certifies agreement to abide by
all the rules, terms and conditions of the permit. Applications lacking a signature shall be
considered incomplete.
C. The applicant shall complete the application and
attachments and provide the following items consistent with the instructions
provided by HPD:
(1) written
authorization for the proposed excavation from the owner of the land on which
the archaeological site is located;
(2) a research
design consistent with the standards in 4.10.21 NMAC and the methods to be used
during the mechanical excavation consistent with 4.10.14.12 NMAC.;
(3) a staff roster that lists the names
of the principal investigator, project director, field supervisor and crew
chief who are listed in the SHPO directory and will be working in the field during
the permitted excavation;
(4) a written acknowledgment by the applicant that a final report on the
results of the excavation shall be submitted to HPD; and
(5) an estimated date of completion for a final report on the results of the
excavation.
D. An approved application shall list special stipulations
imposed by the CPRC, if any, and shall list the term of the permit and the
permit number; the term of the permit shall be one year from the date of
approval by the CPRC unless the applicant proposes a later date that is
approved by the CPRC.
E. An approved application shall have the signature of the
chair of the CPRC indicating approval of the permit and signatures of the state
archaeologist and the SHPO indicating their concurrence with the issuance of
the permit.
[4.10.14.9 NMAC – Rp,4.10.14.9
NMAC, 01/16/2019]
4.10.14.10 REVIEW AND APPROVAL OF
APPLICATIONS:
A. HPD
shall receive permit applications including attachments and maintain current
files for each individual or firm who has a mechanical excavation permit.
B. HPD shall review all information submitted in support of
the application for completeness, accuracy, and conformance with all qualifying
requirements. When requested, the
applicant shall remedy any inaccuracies or inadequacies specified by HPD before
further review or processing of the permit application proceeds. HPD shall submit all completed applications
for consideration at the next scheduled CPRC meeting. HPD may recommend to the CPRC that an
application be tabled or rejected if the applicant fails to meet minimum
qualifying criteria either upon initial receipt or through failure to respond
adequately to a request for information.
C. The CPRC shall review and consider all completed
applications for approval, approval with special stipulations, or denial, with
the concurrence of the state archaeologist and the SHPO. The CPRC may table applications to be discussed
at a future meeting pending receipt of additional information necessary to make
a decision on the permit.
D. Any special stipulations attached to a permit by the
CPRC, the state archaeologist, or the SHPO shall be specified in writing on the
permit.
E. HPD shall notify the applicant in writing of the
approval, approval with stipulations or denial of the permit by CPRC, with the
concurrence of the state archaeologist and the SHPO.
F. Any applicant who has been denied a permit by the CPRC,
the state archaeologist, or the SHPO shall have the right to appeal the
decision pursuant to 4.10.8.24 NMAC.
[4.10.14.10 NMAC – Rp,
4.10.14.10. NMAC, 01/16/2019]
4.10.14.11 MECHANICAL EXCAVATION PERMIT STIPULATIONS:
A. Permittees
shall abide by all stipulations contained in this rule and any special stipulations
imposed by the CPRC, the state archaeologist, the SHPO or the owner of the land
on which the site is located. These
additional stipulations shall be set out in writing on the permit.
B. Permittees shall determine the land status and ownership
of the land on which the archaeological investigation will occur to insure the
work will not be in trespass and that they are in compliance with local, state
or federal laws.
C. All
costs incurred in the execution of the activities conducted under a permit
shall be borne by the permittee or its client.
D. The permittee shall comply with all laws, rules,
ordinances and requirements in all matters and things affecting the premises
and operations therein pertaining to the permit, archaeological site and the
land where the site is located.
E. All
activities conducted under the permit shall be carried out so as to prevent
erosion of the land, pollution of water resources and any other damage to the
natural environment. Any sites or locations, disturbed in the course of the
archaeological investigations conducted under the permit shall be restored to
their original condition insofar as possible. The areas of limited tests, test
excavations and excavation shall be backfilled. All areas examined under the
permit shall be left in a state that will not create hazard to life nor
endanger livestock or other property, nor contribute to the deterioration of
the site or location or adjacent lands by natural forces, unless other
provisions are specifically arranged in the permit application.
F. If
human burials are discovered during the excavation, local law enforcement shall
be notified pursuant to 4.10.11 NMAC. If
the human burial cannot be left in place, excavations shall be carried out in
conformance with 4.10.11 NMAC.
G. All material remains collected or removed from the
site as a result of the excavation conducted under the permit shall be the
property of the owner of the land on which the site is located, with the
exception of unmarked human burials and any funerary object, material object or
artifact buried, entombed or sepulchered with the human burial or burials,
which shall be the subject of consultation in accordance with 4.10.11
NMAC. The permittee may encourage the
landowner to donate the material remains to a public institution that curates
such material.
H. If the excavation is delayed as a result of
unforeseen circumstances and cannot be completed within the permit period, the
permittee shall notify HPD in writing to request an extension to the term of
the permit. This request shall be received by HPD within 10 working days prior
to the expiration date of the permit in order to be considered. The request for
the extension shall be accompanied by an interim report summarizing the status
of the excavations, a proposed date for when the excavations will be completed
and proposed date for when the final report will be submitted. HPD may approve one extension of the permit
term not to exceed one year from the expiration date of the original
permit. Additional requests for an
extension will be reviewed by the CPRC.
I. If the archaeological investigation is discontinued
and cannot be completed as a result of unforeseen circumstances, the permittee
shall notify HPD in writing to request a cancellation of the permit.
Disposition of material remains collected under the permit and copies of all
written and photographic records resulting from a discontinued investigation
will be in accordance with the provisions of this section.
J. If fieldwork has not been initiated within the permit
period or an extension has not been requested, the permit shall become void at
the end of the permit period.
K. Failure by a permittee to comply with the standard or
special stipulations set forth in this rule and on the permit may be cause for
the CPRC's denial of future permits to the permittee in conformance with
4.10.8.23 NMAC.
[4.10.14.11 NMAC – Rp,
4.10.14.11 NMAC, 01/16/2019]
4.10.14.12 STANDARDS FOR THE USE OF MECHANICAL
EQUIPMENT: All permitted excavations using mechanical
equipment shall conform to the following standards.
A. Mechanical
excavation may be used to define stratigraphy, locate subsurface features and
cultural deposits and remove sterile overburden.
B. Controlled surface collection of artifacts shall be accomplished using a grid
system or by point provenience prior to excavation of trenches or stripping or scraping
areas with mechanical earth-moving equipment.
C. For each trench:
(1) document the
location, depth, soil profile, artifact yield and other pertinent information;
(2) clean at
least one complete profile with a shovel or trowel and inspect the profile for
material remains;
(3) document the
cleaned profile in narrative, profile drawing and photographs;
(4) examine the
excavated area after the removal of each extracted bucket load;
(5) examine back
dirt for the presence of artifacts; and
(6) conform depths and configurations of mechanical excavation
trenches to OSHA standards for excavation safety (29 CFR 1926, Subpart P).
D. Stratigraphic profiles shall be recorded by scale diagram, photographs and narrative descriptions. Deposit descriptions include but are not limited to sediment color, texture, moisture, content, nature of inclusions, organic content and an inventory of cultural material. The color shall be described using Munsell terminology.
E. Mechanical
stripping or scraping may be employed following hand excavations or mechanical
trenching unless depth of cultural deposits has been determined from surface
observations. The stripping serves the
purpose of revealing features that were not previously identified and provides
a check on the reliability of the excavation sampling design. Features exposed during the mechanical
stripping shall be mapped in relation to the site datum. All features shall be fully excavated unless
a sampling strategy is included in the approved research design and excavation
plan.
[4.10.14.12 NMAC – Rp,
4.10.14.12 NMAC, 01/16/2019]
4.10.14.13 REPORTING STANDARDS:
A. The
permittee may submit to HPD one copy of a preliminary report on the results of
the excavation including relevant maps, drawings, photographs and other
documents for review and acceptance by HPD prior to construction and when a
final report cannot be completed before construction.
B. A final report and associated records, including but not
limited to archaeological site records, list of collections, and photographs, on
the excavations shall be submitted to HPD within one year of the completion of
the excavations or the date approved by the CPRC. If HPD has not received a copy of the report
within the permit period, HPD shall contact the permittee. If the excavations are part of a larger
project that includes sites on state land, the final report shall be prepared
consistent with 4.10.16.14 NMAC for test excavation projects or 4.10.21.12 NMAC
for excavation projects.
C. All reports shall be reviewed by HPD for technical
accuracy and completeness.
(1) If HPD review reveals that the
proposed investigations were not completed consistent with the application and
stipulations contained on the approved permit, HPD will notify the permittee of
the deficiencies and request that the permittee amend the report to correct the
deficiencies and resubmit the report.
(2) Failure by the permittee to conduct
the permitted investigation according to standards or stipulations or to submit
required reports in a timely manner or to amend report deficiencies as
identified by HPD shall be documented as unacceptable performance pursuant to
4.10.8.21 NMAC.
[4.10.14.13 NMAC – Rp,
4.10.14.13 NMAC, 01/16/2019]
4.10.14.14 DEVIATIONS: The
CPRC, SHPO and state archaeologist reserve the right to waive or deviate from
this rule or any parts of this rule under circumstances deemed necessary by the
CPRC, SHPO and state archaeologist. Any
waiver or deviance from this rule shall occur while maintaining the spirit,
intent and objective of this rule and the Cultural Properties Act.
[4.10.14.14 NMAC – Rp,4.10.14.14 NMAC, 01/16/2019]
HISTORY OF 4.10.14 NMAC:
Pre-NMAC History: The
material in this part was derived from that previously filed with the state
records center and archives under:
CPRC 82-R1,
Regulations Pertaining to the Issuance of Permits to Conduct Archaeological
Investigations, filed 5-28-82.
CPRC Rule 87-8,
Regulations Pertaining to the Issuance of Permits to Conduct Archaeological
Investigations, filed 3-26-87.
History of Repealed Material: Rule
4 NMAC 10.8, Regulations Pertaining to the Issuance of Permits to Conduct
Archaeological Investigations (filed 11/03/97), repealed 10/01/05.
4.10.14 NMAC,
Cultural Properties on Private Land and Mechanical Excavation Permits, filed
10/01/05, repealed 01/16/2019.
Other History:
CPRC Rule 87-8,
Regulations Pertaining to the Issuance of Permits to Conduct Archaeological
Investigations (filed 3-26-87) was renumbered and reformatted to 4 NMAC 10.8,
Regulations Pertaining to the Issuance of Permits to Conduct Archaeological
Investigations, effective 11/15/97.
That applicable
portion of Rule 4 NMAC 10.8, Regulations Pertaining to the Issuance of Permits
to Conduct Archaeological Investigations (filed 11/03/97) was renumbered,
reformatted and replaced by 4.10.14 NMAC, Cultural Properties on Private Land
and Mechanical Excavation, effective 1/01/06.