COALEX STATE INQUIRY REPORT - 1
August 1, 1984

Sue A. Shadley, Legal Analyst
Division of Reclamation
309 W. Washington Street
Indianapolis, Indiana 46204

TOPIC: INDIAN BURIAL GROUNDS; ARCHAEOLOGY

INQUIRY: In Indiana, the permit must identify any sites within the permit area that are of
historical or archaeological significance.  Although the state has an archaeologist who investigates
proposed mining sites, generally the only protection a site may have would be if the public
submitted a lands unsuitable petition.

SEARCH RESULTS: See below.

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   A search of the state regulatory programs was conducted.  The State of Wyoming was the only
state located with a specific reference to archaeology under its environmental performance
standards.  Similar to the procedure described by Indiana, most states require identification of
archaeological sites and Indian burial grounds in the permit application.  Once identified,
protection is accorded under the lands unsuitable petitioning process.  The state regulatory
languages mirror almost verbatim the federal regulations 30 CFR Secs. 772.12(b), 779.12(b).
779.24(j), 762.5 and 762.11(b)(2).

   Special protection is accorded under the state regulatory programs, as required by the Act, to
sites located on a publicly owned park or places included in the National Register of Historic Sites,
subject to valid existing rights.  Mining is prohibited unless joint agreement is reached by the
regulatory authority and the federal, state, or local agency that has jurisdiction (SMCRA Sec.
522(e)(3))

   Under permit review, the states of Wyoming and North Dakota include procedures that extend
some protection to archaeological sites in addition to the lands unsuitable petition.

   In Wyoming, "upon recommendation by a qualified archaeologist or a qualified paleontologist,
the administrator may require an evaluation of the proposed permit area prior to the time that a
permit or license is issued." (Wy, Chapter II Permit Application) Once mining has begun,
Wyoming further requires, as a performance standard, that any significant archaeological
discovery be reported within five days of its discovery.  Considered an "unanticipated condition",
the state regulations treat a significant archaeological discovery in the same manner as the
uncovering of toxic material or an occurrence of a subsidence safety hazard. (Wy, Chapter IV
Environmental Protection Performance Standards)

   The North Dakota state program allows the regulatory authority, in its review of the permit
application, to delete areas, require application revision, or reject an application if it finds that an
archaeological site would be adversely affected by the proposed surface coal mining operation. 
Furthermore, "if mining is permitted, the commission, in consultation with the state historical
society, shall establish procedures for the protection and preservation of such sites throughout
the surface coal mining operation."  Once surface mining operations have begun in an area, the
commission, upon finding that they may affect such sites, "may make such changes in the permit
as it may deem necessary to avoid such described conditions." (ND, Permit Approval or Denial
Standards)

   Under 30 CFR 731.14(b), states are required to submit copies of other state laws that directly
affect the regulation of surface coal mining.  Utah included among its submitted documents, the
Division of State History Act, under which the Division of State History is responsible for "the
marking and preservation of historic sites, areas, and remains." (Utah, Division of State History -
Duties and Objectives)

   The Utah state act specifically addresses excavation and permit requirements for archaeological
or paleontological work.  It contains, however, criteria by which archaeological sites may be
classified as "designated landmarks".  Once designated a landmark, the sites receive special
protection under the Division of State History Act:

"It is unlawful for any person to enter a site located on state land or lands owned or controlled by
the state or its subdivisions, or which have been designated as landmarks pursuant to this act, for
the purpose of appropriating, injuring, or destroying a specimen without a permit from the
division of state history." (Utah, Permit Required for Archaeological or Paleontological Work)

   No privately owned site, under the terms of the statute, can be classified a designated
landmark, without the written consent of the owner. (Utah, Designation of "State Archaeological,
Anthropological or Paleontological Landmarks")


ATTACHMENTS
A    Excerpt from Wyoming Land Quality Division of the Department of Environmental Quality;
     Rules and Regs., Chapter II Permit Application; Sec. 2 General Application Content
     Requirements.
B    Excerpt from Wyoming Land Quality Division of the Department of Environmental Quality;
     Rules and Regs., Chapter IV Environmental Protection Performance Standards, Sec. 2
     General Environmental Protection Performance Standards.
C    Excerpt from North Dakota Century Code; Surface Mining Reclamation Act; Sec. 38-14.1-21 Reclamation of Surface Mined Lands: Permit Approval or Denial Standards.
D    Excerpts from Utah Code Annotated 12/31/53 (e); Division of State History Act, Chapter
     18 Division of State History
     Statute Table of Contents
     Sec. 63-18-3 Division of State History -- Duties & Objectives.
     Sec. 63-18-18 Legislative Intent Relating To Archaeological, Anthropological, and
     Paleontological Resources -- Purpose of Act.
     Sec. 63-18-19 Antiquities -- Definition of Terms.
     Sec. 63-18-21 Responsibilities of Antiquities Section.
     Sec. 63-18-25 Permit Required For Archaeological or Paleontological Work -- Supervision
     of Archaeologist -- Rights and Duties of Permittee.
     Sec. 63-18-26 Designation of "State Archaeologist, Anthropological or Paleontological
     Landmarks".
     Sec. 63-18-27 Report of Discovery on State or Private Lands.


Search conducted by: Terri H. Petruska