Current through Register Vol. 63, No. 3, March 1, 2024
(1) A
person may not excavate or alter an archaeological site on public lands, make
an exploratory excavation on public lands to determine the presence of an
archaeological site, or remove from public lands any material of an
archaeological, historical, prehistorical, or anthropological nature without
first obtaining a permit issued by the director.
(2) The director may issue an archaeological
permit to:
(a) A person conducting an
excavation, examination or gathering of such material for the benefit of a
recognized scientific or educational institution with a view to promoting the
knowledge of archaeology or anthropology;
(b) A qualified archaeologist to salvage
archaeological objects from unavoidable destruction; or
(c) A qualified archaeologist sponsored by a
recognized institution of higher learning, private firm or an Indian tribe as
defined in ORS 97.740.
(3) The director may authorize the State
Physical Anthropologist, a "qualified archaeologist" at LCIS, to carry out
activities regulated under ORS
97.740 through
97.750, ORS
358.905 through
390.920, or any combination
thereof, through a written or if needed, verbal archaeological permit, specific
to situations where damage is occurring at that moment, or the threat of damage
is imminent, and the expedited permit review process in (8) would delay the
need for immediate action. The State Physical Anthropologist must:
(a) Relate to SHPO both the sensitive nature
and imminent threat to human remains, burials, funerary objects, sacred
objects, and objects of cultural patrimony;
(b) Receive written or verbal permission from
the most appropriate Indian tribe(s), prior to any potential recovery or
collection;
(c) Notify the
landowner or land managing agency and receive written or verbal approval for
access prior to any potential recovery or collection; and
(d) Notify SHPO, and Oregon State Police of
the location of any recovery or collection under a permit issued under this
section.
(e) Within 30 days after
recovery or collection due to occurring or imminent damage or threat, the State
Physical Anthropologist will provide SHPO with a written account of the
recovery, documenting a-d above, to satisfy their permit requirements in lieu
of sections 4-10.
(4) An
applicant for an archaeological permit pursuant to ORS
390.235 must submit an
application to the director. The application must be complete and include:
(a) A map, such as a USGS 7.5 minute
topographic at 1:24,000 scale, that enables the landowner or land managing
agency, SHPO, LCIS, and the appropriate Indian tribe(s) to clearly understand
the exact location of the archaeological investigation;
(b) A research design that explicitly
develops the rationale behind the archaeological investigation. The research
design supports the applicant's understanding of appropriate archaeological
methods, theoretical paradigms, analyses, curation, laws, anticipated results,
and an understanding of the context of place through time. Tribal coordination
will assist the applicant in developing research designs, which includes
background information from any pertinent publications, gray literature,
informants, tribes, ethnographies, historic properties of religious and
cultural significance, traditional cultural properties, known archaeological
objects and sites, historic documents or National Register bulletins relevant
to the objectives of the archaeological investigation and its location. The
research design includes appropriate field and analytical methods to achieve
any research objectives based on informed expectations, and is part of the
terms of an issued permit;
(c) The
name and current contact information of the landowner or land managing
agency;
(d) The state designated or
approved alternate curation facility for archaeological objects, field forms,
photographs, and other attendant data from the proposed archaeological
investigation;
(e) A list of any
tribes that the applicant engaged in tribal coordination prior to submitting
the archaeological permit application;
(f) A statement from the applicant disclosing
any prior state or federal archaeological law violations;
(g) A list of all open archaeological permits
issued to the applicant still pending;
(h) A list of any outstanding archaeological
permits where terms or conditions have not been satisfied in the time allotted
from the past ten years;
(i) As
applicable, a contingency plan for any unanticipated discoveries of
archaeological objects or sites during any stage of an archaeological
investigation or related project or undertaking.
(j) An inadvertent discovery plan specific to
any burial, human remains, funerary objects, sacred objects, or objects of
cultural patrimony.
(5)
Upon receipt of a complete application, the director, shall determine whether
the application involves public lands.
(6) After a request is made from SHPO, LCIS
will provide the most appropriate Indian tribe(s) with approval authority over
the archaeological permit application. In the event LCIS is not able to respond
within 48 business hours, SHPO will designate the most appropriate Indian
tribe(s) based on past permits issued in the vicinity.
(7) The SHPO shall provide the complete
application to entities with approval authority for review.
(a) Entities with approval authority have 30
calendar days from the date SHPO sends the application to respond with their
approval, approval with conditions, or objection. No response within 30-days
means no conditions or objections were submitted to SHPO. SHPO shall send
copies of all responses to the applicant;
(b) Before issuing a permit, SHPO shall
review any conditions to be added to the issued permit, or objections received
from entities with approval authority;
(c) At the request of any tribe with approval
authority over a permit application, the applicant shall continue to coordinate
with them during the 30-day review period under subsection (a). Tribal
coordination may include, but is not limited to, a discussion of the proposed
archaeological investigations, research design, permit terms or conditions,
reporting, tribal monitoring of the permit work, curation, inadvertent
discovery contingency plans during the archaeological investigations, or any
associated project design or development.
(8) Any person who discovers an
archaeological object, site, human remains, burial, historic cemetery, funerary
object, sacred object, or object of cultural patrimony, may request an
expedited 48-hour permit review. The director may grant the request upon a
determination, in coordination with entities with approval authority, that the
30-day permit review period of this rule will result in an undue risk to public
health, life or safety, or an undue threat to the archaeological object, site,
human remains, burial, funerary object, sacred object, or object of cultural
patrimony. Examples of situations creating undue risk to public health, life or
safety include: hazardous material spills, breach of regional flood control
facilities, and pipeline failures. Examples of creating undue threat to an
archaeological object, site, human remains, burial, historic cemetery, funerary
object, sacred object, or object of cultural patrimony include: erosion,
susceptibility to theft, prolonged exposure to the elements, and proposed
construction related activities.
(a) If the
director determines that an expedited review request is warranted, the
following procedures apply:
(A) The applicant
shall submit an expedited permit application for the director to send out to
entities with approval authority for review;
(B) During the following 48 hours (excluding
Saturday, Sunday, and any state, federal, or tribal holidays), entities with
approval authority may respond to the permit application with their approval,
approval with conditions, or object. No response within 48 hours means the
entity with approval authority did not condition or object. If any entity with
approval authority objects in writing to an expedited review, the director or
their designee will not proceed with the expedited review;
(C) The applicant may proceed when the permit
is issued.
(b) For the
purposes of this section, excluding burials, human remains, funerary objects,
sacred objects, or any objects of cultural patrimony, expedited 48-hour permit
reviews are only available if prior compliance review by appropriate Indian
tribe(s), and SHPO has occurred.
(c) The summary abatement of unsafe or
dangerous condition where the 48-hour review delay constitutes an imminent and
serious threat to public safety shall be allowed before the permit is issued
with prior notification to the director and the tribes identified by
LCIS.
(9) After
considering the application, maps, research design, and recommendations for
conditions, or objections received by entities with approval authority during
consultation, the director may issue the permit without conditions, issue the
permit with conditions, or deny the permit. The permit does not relieve the
applicant of compliance with other federal or state requirements, including,
but not limited to, ORS
97.740 to
97.760, ORS
358.905 to
358.961, and ORS
390.235.
(10) The applicant and entities with approval
authority will receive a copy of the approved signed permit from the
director.
(11) All work under a
permit issued by the director shall be suspended in the event human remains,
funerary objects, sacred objects, or objects of cultural patrimony are
encountered during the investigation, including post-fieldwork curation
processing. For such discoveries, the permit holder must contact the LCIS,
appropriate Indian tribe(s), Oregon State Police, and SHPO.
(12) The director, in coordination with
appropriate Indian tribe(s) may amend archaeological permits where:
(a) The applicant requests amendments to an
active, issued archaeological permit.
(b) Amendment requests address anything in
the issued permit, with the exception of field methods.
(c) An amendment request to extend permit
deadlines and deliverables may not exceed more than one year.
(d) An amendment requesting a change in
responsibility over an issued permit must be signed by both the current and
proposed applicant. If either the proposed or current applicant is not
available, the amendment requestor must contact the director to determine if a
new permit is needed.
(e) The
director will send amendment requests for a 10-day review to entities with
approval authority.
Statutory/Other Authority: ORS
390.235 & ORS
390.240
Statutes/Other Implemented: ORS
390.235
