SENATE BILL 421

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Rod Adair

AN ACT

RELATING TO CULTURAL PROPERTIES; REQUIRING THAT NOMINATIONS TO PLACE A CULTURAL PROPERTY ON THE OFFICIAL REGISTER BE MADE BY ALL OF THE OWNERS OF THE LAND COMPRISING THE CULTURAL PROPERTY OR UPON WHICH THE CULTURAL PROPERTY IS LOCATED; REMOVING THE POWER OF EMINENT DOMAIN AS A MEANS FOR ACQUIRING CULTURAL PROPERTIES UNDER THE CULTURAL PROPERTIES ACT; REQUIRING THE PROMULGATION OF REGULATIONS; CLARIFYING CERTAIN EFFECTS OF A DESIGNATION AS A REGISTERED CULTURAL PROPERTY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 18-6-3 NMSA 1978 (being Laws 1969, Chapter 223, Section 3, as amended) is amended to read:

     "18-6-3. DEFINITIONS.--As used in the Cultural Properties Act:

          A. "committee" means the cultural properties review committee;

          B. "cultural property" means a structure, place, site or object having historic, archaeological, scientific, architectural or other cultural significance;

          C. "owner" includes, in the case of land in which the surface estate has been severed from the mineral estate, both the surface estate and the mineral estate owners;

          [C.] D. "registered cultural property" means a cultural property that has been placed on the official register on either a permanent or temporary basis by the committee;

          [D.] E. "official register" means the New Mexico register of cultural properties maintained by the committee for the purpose of recording cultural properties deemed worthy of preservation; and

          [E.] F. "state land" means property owned, controlled or operated by a department, agency, institution or political subdivision of the state."

     SECTION 2. Section 18-6-5 NMSA 1978 (being Laws 1969, Chapter 223, Section 5, as amended) is amended to read:

     "18-6-5. COMMITTEE--POWERS AND DUTIES.--The primary function of the committee is to review proposals for the preservation of cultural properties. The committee is authorized to take such actions as are reasonable and consistent with law to identify cultural properties and to advise on the protection and preservation of those properties. Among such actions as may be necessary and proper to the fulfillment of these responsibilities, and without being limited hereby, the committee:

          A. shall determine what constitutes historical, archaeological, scientific, architectural and other cultural significance for the purpose of identifying cultural properties as used in the Cultural Properties Act;

          B. shall prepare and keep up to date the official register. This official register shall be composed of properties identified by the committee as having historical or other cultural significance and integrity, being suitable for preservation and having educational significance; provided that a cultural property shall not be included in the official register unless a nomination for the inclusion, signed by all of the owners of the land comprising the cultural property or upon which the cultural property is located, has been submitted to the committee;

          C. shall prepare and maintain proper documentation of the historic or other significance of cultural properties. The committee is granted access to all state and local public documents that may be necessary for the documentation, and such state and local agencies as have custody of such documents are authorized to allow the committee to examine and reproduce those documents useful for the documentation;

          D. shall inspect all registered cultural properties periodically to [assure] ensure proper cultural or historical integrity and proper maintenance. The inspection may be made by an authorized representative of the committee or the historic preservation division of the [office of] cultural affairs department. Such inspection shall be made only with the written consent of the owner or [his] the owner's authorized representative;

          E. shall, based upon the inspection of a registered cultural property, recommend such repairs, maintenance and other measures as should be taken to maintain registered status;

          F. shall issue regulations pertaining to:

                (1) the process for nominating cultural properties for placement on the official register;

                (2) the decision process for placement of the properties on the official register; and

                (3) the identification, preservation and maintenance of registered cultural properties in order to maintain the integrity of those properties;

          G. may delete from the official register any registered cultural property whose owner does not comply with the committee's regulations or follow its recommendations for repair and maintenance or [which] that, upon presentation of further evidence, does not merit continued official registry;

          H. may recommend to the museum resources division of the [office of] cultural affairs department and other public administrators of registered cultural properties measures for the investigation, restoration and protection of such properties;

          I. may encourage and render technical advice to private owners of registered cultural properties in order that such properties may be preserved;

          J. may encourage and provide technical assistance to municipalities and counties in acquiring, preserving and developing cultural properties within their jurisdictions;

          K. shall cooperate with federal, state, local and private agencies and persons engaged in the administration, development or other work relating to cultural properties within the state;

          L. shall pursue all activities in a manner consistent with state and federal laws and regulations;

          M. may encourage and promote public appreciation of New Mexico's historical and cultural heritage by:

                (1) reviewing for accuracy the proposed publication of information on cultural properties; and

                (2) reviewing the accuracy and adequacy of proposed marking of cultural properties;

          N. may utilize the assistance of individuals, local organizations, state agencies and others interested in the identification and preservation of cultural properties;

          O. may issue, with the concurrence of the state archaeologist and the state historic preservation officer, permits for the examination or excavation of sites and the collection or removal of objects of antiquity or general scientific interest, where such sites or objects are located on state lands, to institutions [which] that the committee may deem to be properly qualified to conduct such examination, excavation or collection, subject to such rules and regulations as the committee may prescribe; provided that the examinations, excavations and collections are undertaken by reputable museums, universities, colleges or other historical, scientific or educational institutions or societies approved by the committee, with a view toward disseminating knowledge about cultural properties; and provided that a summary report of such investigations, containing relevant maps, documents, drawings and photographs, be submitted to the committee, which shall in turn submit the report to the appropriate agency or make other appropriate disposition of the report; and provided further that all specimens so collected shall be the property of New Mexico and that prior arrangements be made for the disposition of specimens derived from such investigations in an appropriate institution of the state or for loan of such specimens to qualified institutions in or out of the state;

          P. shall provide advice to the state historic preservation officer [in] of the historic preservation division and to the director of the museum resources division of the [office of] cultural affairs department on cultural properties; and

          Q. shall make, in conjunction with the historic preservation division, an annual report on its activities to the governor and the legislature. The report may contain recommendations for the more effective preservation of New Mexico's historic and cultural heritage."

     SECTION 3. Section 18-6-6 NMSA 1978 (being Laws 1969, Chapter 223, Section 6, as amended) is amended to read:

     "18-6-6. CULTURAL AFFAIRS DEPARTMENT--POWERS AND DUTIES RELATING TO THE CULTURAL PROPERTIES ACT.--

          A. The cultural affairs department is responsible for administering, developing and maintaining all registered cultural properties in its ownership or custody.

          B. Unless other locations are deemed more appropriate by the committee, in consultation with the museum of New Mexico, because of the nature of the property involved, the cultural affairs department shall be the depository for all collections made under the provisions of the Cultural Properties Act and shall make available material from such collections to museums in and out of the state on the request of the governing bodies of those museums when, in the opinion of the department, such use is appropriate and when arrangements are made for the safe custodianship and public exhibition of the material in accordance with department rules. The museum of New Mexico shall maintain a record of the location of all such collections.

          C. The cultural affairs department may seek and accept gifts, donations and grants, subject to the provisions of Subsection B of Section 18-6-7 NMSA 1978, to be used to acquire, preserve or restore registered cultural properties.

          D. The cultural affairs department may acquire by gift or purchase [or, if no other means of acquisition are available, condemnation] any cultural property or interest therein sufficient to preserve such property. Cultural properties so acquired shall be administered by the department or other appropriate state agencies in accordance with Subsections A and B of this section.

          E. The cultural affairs department may enter into agreements with the committee to provide assistance in carrying out the duties of the committee."

     SECTION 4. Section 18-6-8.1 NMSA 1978 (being Laws 1986, Chapter 10, Section 5) is amended to read:

     "18-6-8.1. REVIEW OF PROPOSED STATE UNDERTAKINGS.--The historic preservation division of the [office of] cultural affairs department shall periodically furnish copies of the official register or relevant sections of the official register to state agencies and departments and shall periodically advise state agencies and departments of the status of the division's program of cultural property identification and registration. The head of any state agency or department having direct or indirect jurisdiction over any land or structure modification [which may affect] on a registered cultural property shall afford the state historic preservation officer a reasonable and timely opportunity to [participate in planning such undertaking so as to preserve and protect, and to avoid or minimize adverse effects on, registered cultural properties] comment on the modification. Nothing in the Cultural Properties Act shall be deemed to have any effect on the use of any property:

          A. not placed on the official register; or

          B. that does not contribute to the historic, archaeological, scientific, architectural or other cultural significance of a registered cultural property."

     SECTION 5. Section 18-6-10 NMSA 1978 (being Laws 1969, Chapter 223, Section 9) is amended to read:

     "18-6-10. CULTURAL PROPERTIES ON PRIVATE LAND.--

          A. It is the declared intent of the legislature that field [archeology] archaeology on privately owned lands should be discouraged except in accordance with the provisions [and spirit] of the Cultural Properties Act [and persons having knowledge of the location of archeological sites are encouraged to communicate such information to the committee].

          B. It shall be deemed an act of trespass and a misdemeanor for any person to remove, injure or destroy registered cultural properties situated on private lands or controlled by a private owner without the owner's prior permission. Where the owner of a registered cultural property has submitted [his] acceptance in writing to the committee's registration of that cultural property, the provisions of Section [8 of the Cultural Properties Act] 18-6-9 NMSA 1978 shall apply to that registered cultural property.

          C. Where a cultural property is on private land or is otherwise privately owned and, after receiving a nomination signed by all of the owners of the private land, the committee determines that such cultural property is worthy of preservation and inclusion on the official register, the committee may recommend the procedure best calculated to [insure] ensure preservation. Such procedures may include:

                (1) providing technical assistance to the owner who is willing to restore, preserve and maintain the cultural property;

                (2) acquiring the property or an easement or other right therein by gift or purchase;

                (3) advising the county or municipality within which the cultural property is located on zoning the property as an historic area or district in accordance with the Historic District and Landmark Act; and

                (4) advising the county or municipality within which the cultural property is located on the use of agreements, purchases or the right of eminent domain to obtain control of the cultural property in accordance with the Historic District and Landmark Act [and

                (5) acquiring the property for the state by use of the right of eminent domain]."

     SECTION 6. Section 18-6-12 NMSA 1978 (being Laws 1969, Chapter 223, Section 10) is amended to read:

     "18-6-12. EMERGENCY CLASSIFICATION PENDING INVESTIGATION.--A cultural property [which] that the committee thinks may be worthy of preservation may be included on the official register on a temporary basis for not more than one year, during which time the committee shall investigate the property and make a determination as to whether it may be permanently placed on the official register. If the cultural property is on private land, the temporary classification shall not be [considered a taking of private property, but the owner may receive a fair rental value for the part of the land affected if the temporary classification unduly interferes with the owner's normal use of the land] effective unless all of the owners of the private land have agreed in writing to the temporary classification. The owner shall be immediately notified of the committee's determination. If, at the expiration of one year from the time the temporary classification was imposed, the [owner has not been notified of any committee action] cultural property has not been permanently included on the official register pursuant to the provisions of the Cultural Properties Act, the temporary classification shall lapse, and it shall not be renewed for five years."

     SECTION 7. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.

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