AD HOC LEGISLATIVE ISSUES COMMITTEE REPORT - March 2000

Al Tonetti, Committee Chair

State Legislation

Here we go again, perhaps. On January 18, 2000, State Representative James Buchy (R-Greenville) introduced House Bill (HB) 550, a bill to revise the offense of vandalism. The bill has been referred to the House Committee on Criminal Justice. The revisions are primarily technical in nature. Revisions relevant to archaeological concerns include clarifying that the offense of vandalism pertains to all private property, not just certain types of private property as indicated in the current law, and adds "but is not limited to" the definition of a cemetery. Under the bill the new definition for a cemetery would be "any place of burial and includes, but is not limited to, burial sites that contain American Indian burial objects placed with or containing American Indian human remains." According to Rep. Buchy's office, this bill was drafted and introduced after numerous requests to do so by artifact collectors, sellers, and buyers, many of whom are members of the Archaeological Society of Ohio.

Electronic review of HB550 or any proposed bill or existing legislation in Ohio can be made at www.legislature.state.oh.us.

The privilege clause and existing penalties are retained in the bill. The bill prohibits a person, without the privilege to do so, of knowingly causing physical harm to private property or serious physical harm to government property. The difference between physical harm and serious physical harm is that the latter results in a loss to the value of the property of $500 or more, while the former has no dollar threshold. Physical harm means any tangible or intangible damage to property that results in a loss to the property's value or interferes with its use or enjoyment, but does not include wear and tear by normal use.

Federal Legislation

On February 15, the National Mining Association filed a federal lawsuit challenging a number of provisions of the revised Section 106 regulations promulgated last year by the Advisory Council on Historic Preservation (ACHP). The regulations remain in effect until otherwise ruled by the court.

Among other things, the lawsuit alleges that the revised regulations unlawfully 1) exceeds the role assigned to the ACHP by Section 106 in that it gives the ACHP substantive regulatory authority over other Federal agencies; 2) extends the reach of Section 106 in defining an undertaking; 3) extends Section 106 to properties not formally determined eligible for the National Register of Historic Places; 4) enlarges the role of Indian tribes beyond that intended by Congress; 5) employs a vague and overbroad definition of what constitutes an adverse effect; 6) violates the Appointments Clause of the Constitution by vesting the ACHP (which includes two members that are not appointed by the President -- i.e., NCSHPO and the National Trust) with authority or functions that may only be carried out by Presidential appointees; and 7) were promulgated without observing certain procedural aspects required by the Administrative Procedures Act, such as not meaningfully addressing the comments filed by the National Mining Association and publishing the regulations without adequate notice and opportunity to comment.

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