OLG and DCRT
Strategic Plan
2014-15 through 2018-19

         

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Chapter 21-B - Louisiana Historic Cemetery Preservation Act
 

§931. Short title

This Chapter shall be known as the "Louisiana Historic Cemetery Preservation Act".

§932. Legislative declaration of intent

The legislature hereby finds the demolition, destruction, and damage of historic cemeteries and isolated graves a disrespectful practice. The legislature further finds that existing state laws do not provide for the adequate protection of historic cemeteries that are not under the jurisdiction of the Louisiana Cemetery Board, are not on state lands, and are not solely comprised of unmarked graves. Cemeteries are considered by most cultures to be sacred spaces. In addition to being resting places for our dead, many of Louisiana's cemeteries are repositories of significant examples of art, architecture, and archaeology as well as containing the history of their respective communities. The importance of cemeteries should not be taken lightly, as these significant elements represent a substantial tourist attraction for the state of Louisiana, and also present an endless source of data for historians, taphologists, anthropologists, archaeologists, and genealogists that collectively lead us to a better understanding of our own culture.

§933. Definitions

The following words and phrases when used in this Chapter shall have the meanings given to them in this Section unless the context clearly indicates otherwise:

(1) "Abandoned cemetery" shall mean any cemetery which is no longer being used for interments, is not being maintained in good condition, and has fallen into a state of disrepair, including tombs and headstones that have collapsed or been destroyed, walls and fences that have fallen apart, and trees and bushes that have grown amongst and within grave spaces.

(2) "Advisory board" shall mean the advisory board for the Louisiana Historic Cemetery Trust Fund.

(3) "Artifact" shall mean any item of human manufacture or use that is associated with a historic cemetery or isolated grave.

(4) "Board" shall mean the Louisiana Cemetery Board.

(5) "Damage" shall mean the intentional or inadvertent hurt, harm, or injury to a component of a historic cemetery or to an isolated grave so as to lessen or destroy its historic, cultural, or scientific value.

(6) "Department" shall mean the Department of Culture, Recreation and Tourism.

(7) "Destruction" shall mean intentionally or inadvertently destroying components of a historic cemetery by violent disintegration of its fabric so as to reduce the components to ruin.

(8) "Division" shall mean the office of cultural development, division of archaeology, within the department.

(9) "Fund" shall mean the Louisiana Historic Cemetery Trust Fund.

(10) "Grave space" shall mean a grave, crypt, vault, niche, tomb, lawn crypt, or any other property used or intended to be used for the interment of human remains. The term shall also include any marker or other means of commemoration associated with the grave space.

(11) "Historic cemetery" shall mean any abandoned cemetery located in the state that is more than fifty years old and is not subject to the laws, rules, and regulations of the board or Chapter 10-A of Title 8 of the Louisiana Revised Statutes of 1950.

(12) "Human skeletal remains" shall mean any part of the body of a deceased human being in any stage of decomposition.

(13) "Isolated grave" shall mean any marked grave site that is not part of a larger cemetery and is not subject to the laws, rules, and regulations of the board or Chapter 10-A of Title 8 of the Louisiana Revised Statutes of 1950. The term shall also include groupings of multiple graves that are not part of a larger cemetery.

(14) "Modification" shall mean the altering of the original substance of a grave space.

(15) "Program" shall mean the Louisiana Historic Cemetery Preservation Program.

(16) "Unmarked burial site" shall have the same meaning as provided in R.S. 8:673.

§934. Louisiana Historic Cemetery Preservation Program

A. The Louisiana Historic Cemetery Preservation Program is hereby established within the Department of Culture, Recreation and Tourism. The program shall be established and maintained in the office of cultural development, division of archaeology. All budgeting, purchasing, and management functions shall be administered by the department.

B. The department may employ and remove personnel as may be necessary for the efficient administration of the program in accordance with applicable civil service law, rules, and regulations, and department policies.

§935. Powers and duties of the department

The department shall have the following powers and duties with respect to the program:

(1) To implement and enforce the provisions of this Chapter.

(2) To adopt such rules and regulations as are necessary to implement and to enforce the provisions of this Chapter. All rules and regulations shall be adopted in accordance with the Administrative Procedure Act, R.S. 49:950 et seq.

(3) To consult with all interested parties on occasions of planned or inadvertent destruction, damage, or modification of grave spaces within historic cemeteries or of isolated graves and to determine a proper course of action.

(4) To institute civil proceedings seeking injunctive or other relief to restrain and to prevent violations of this Chapter or the laws or administrative rules administered or enforced pursuant to this Chapter.

(5) To institute civil proceedings seeking restitution, payment of costs, or other monetary relief necessary to prevent, restore, or repair damage to grave spaces within historic cemeteries or to isolated graves.

(6) To issue permits for the disinterment and scientific study of human skeletal remains and artifacts found in or near historic cemeteries or isolated graves. The department may adopt rules and regulations to provide for the issuance of emergency permits by the state archaeologist. Provisional permits may be used by the department until such time as the program is staffed, and the department has adopted rules and regulations governing permitting.

(7) To charge an amount not in excess of the amount authorized in R.S. 8:676(A)(7) for each such permit. The monies collected from the issuance of permits, subject to applicable provisions of law, shall be used as provided for funds from civil damages as authorized by R.S. 25:938. However, the department shall not be required to charge a fee for any permit issued pursuant to this Chapter.

§936. Revocation or suspension of permits

A. The department may revoke or suspend any permit issued under the provisions of this Chapter upon a determination by the division that the holder of the permit has violated the provisions of this Chapter or the rules and regulations adopted pursuant to this Chapter, or has failed to meet the professional or occupational standards determined by the division, or has failed to ensure that the personnel employed by the holder of the permit meet the professional or occupational standards determined by the division.

B. Permits may be revoked or suspended only by a ruling of the department based on an adjudicatory hearing held in accordance with the provisions of the Administrative Procedure Act.

C. Provisional permits may be used by the division of archaeology until such time as the board is appointed and has adopted rules and regulations governing permitting.

D. Each person whose permit has been revoked or suspended shall return the permit to the department within fifteen days of the date on which the notice of the revocation or suspension was received.

§937. Unlawful acts

A. It is unlawful for any person, entity, or group, to whom the department has not issued a permit, to knowingly:

(1) Disturb a historic cemetery or an isolated grave.

(2) Allow any person, entity, or group access to a historic cemetery or an isolated grave for the purpose of disturbing any such cemetery or grave.

(3) Provide funds to or for any person, entity, or group for the purpose of disturbing any historic cemetery or isolated grave.

B. Each violation of this Section shall be punishable upon conviction of a first offense by a fine of not more than five thousand dollars or imprisonment for not more than one year, or both. Upon conviction of a second or subsequent offense each violation shall be punishable by imprisonment for not more than two years or a fine of not more than ten thousand dollars, or both. Each disturbance of a historic cemetery or isolated grave constitutes a separate offense.

§938. Civil remedies

A. The department may institute civil proceedings seeking injunctive relief to restrain and prevent violations of this Chapter or the laws or administrative rules administered or enforced by the department.

B. The department may also institute civil proceedings seeking civil damages from any person who knowingly violates any provision of R.S. 25:937. Civil damages shall include any or all of the following:

(1) Forfeiture of any and all equipment used in disturbing the historic cemetery or isolated grave.

(2) Payment of any and all costs incurred in cleaning and restoring the affected portions of the historic cemetery or the isolated grave.

(3) Payment of any and all costs associated with protecting the historic cemetery or isolated grave from further damage or in restoring the historic cemetery or isolated grave to its original condition.

(4) Payment of any and all costs associated with recovery of data, and analyzing, publishing, accessioning, and curating materials when the prohibited activity is so extensive as to preclude the restoration of the historic cemetery or isolated grave.

(5) Payment of any and all costs associated with the reinterment of the human skeletal remains.

(6) Payment of any and all costs associated with determining and collecting the civil damages, including but not limited to filing fees, attorney fees, court costs, fees associated with discovery and the testimony of expert witnesses, and collection costs.

C. The department may bring actions for injunctive relief or civil damages in either the district court for the parish of East Baton Rouge or in the district court where the historic cemetery or isolated grave is located.

D. The attorney general shall represent the department in all matters pertaining to the administration or enforcement of this Chapter, or both, except in those matters in which the department has employed special counsel. The department may employ and shall fix the compensation of such special counsel with the concurrence of the attorney general and in accordance with the laws and regulations regarding employment of special counsel.

E. Civil damages, except for attorney fees, recovered by the department, subject to applicable provisions of law, shall be used by the department to implement and enforce the provisions of this Chapter and to fund activities of the division in regard to restoration and protection of historic cemeteries and isolated graves, in accordance with regulations adopted by the department and other applicable laws. Attorney fees shall be paid to the Louisiana Department of Justice.

F. The provisions of this Chapter shall in no way limit the exercise of concurrent jurisdiction by other state agencies in the prosecution of criminal or civil lawsuits for violations of the provisions of this Chapter.

§939. Discovery of historic cemetery or isolated grave

A. Any person who has reason to believe he has discovered a historic cemetery or an isolated grave shall notify the department through the division within seventy-two hours of the discovery.

B. Any activity that may disturb the historic cemetery or isolated grave shall immediately cease upon discovery. No activity which shall disturb the historic cemetery or isolated grave shall resume until the department has issued a permit governing the disposition of the historic cemetery or isolated grave. In no event shall the department take longer than thirty days to decide on issuance of a permit without the written agreement of all parties.

§940. Louisiana Historic Cemetery Trust Fund; creation

A. There is hereby created a special fund in the state treasury to be known as the Louisiana Historic Cemetery Trust Fund. The source of the monies to be deposited into the fund shall be grants, gifts, and donations received by the state for the purposes of this Chapter, any other revenues, whether local, state, or federal, as may be provided by law, and other monies which may be appropriated by the legislature to the fund.

B. After compliance with the requirements of Article VII, Section 9(B) of the Constitution of Louisiana, relative to the Bond Security and Redemption Fund, an amount equal to that deposited into the state treasury from the sources provided in Subsection A of this Section shall be deposited in and credited to the fund. The advisory board shall administer the fund and all allocations made therefrom. The monies in the fund shall be invested by the treasurer in the same manner as the state general fund, and all unexpended and unencumbered monies remaining in the fund at the end of each fiscal year shall remain in the fund.

C. The monies in the fund shall be allocated and disbursed by the advisory board solely as provided for and in accordance with the provisions of this Chapter.

§941. Louisiana Historic Cemetery Trust Fund Advisory Board; creation; membership

A. There is hereby created the Louisiana Historic Cemetery Trust Fund Advisory Board within the Department of Culture, Recreation and Tourism, office of cultural development, division of archaeology.

B.(1) The Louisiana Historic Cemetery Trust Fund Advisory Board shall be comprised of nine members as follows:

(a) The lieutenant governor, or his designee.

(b) One member shall be appointed by the Louisiana Cemetery Board.

(c) Seven members shall be appointed by the lieutenant governor who are persons knowledgeable in the areas of cemeteries, preservation, restoration, architectural education, and Louisiana culture and the arts. One of the appointed members shall be a staff member of the division.

(2) The appointing authorities shall make such appointments in such manner as to ensure that the advisory board membership reflects as nearly as possible a cross section of the race, gender, and economic status of the state's population.

C. At the initial meeting of the advisory board, the term of office of each member appointed by the lieutenant governor shall be determined by lot. Of the initial members, four members shall serve for a term of three years, and three members shall serve for a term of two years. Thereafter, each member shall serve for a term of four years or until his successor is appointed and qualified.

D.(1) The advisory board shall meet and organize immediately after appointment of its members and shall elect a chairman and a treasurer from its membership and other officers the advisory board deems appropriate. The advisory board shall adopt rules for the orderly transaction of business and shall keep a record of all grant applications received, their disposition, and all grants awarded. A majority of the appointed members of the advisory board shall constitute a quorum. Members shall serve without compensation.

(2) The advisory board shall meet at least twice a year and at such other times as determined by the chairman.

E. Failure of appointed members to attend three consecutive meetings shall be cause for removal from the advisory board, and the position shall be deemed vacant by notifying the appropriate appointing party.

F. The advisory board shall be domiciled in East Baton Rouge Parish.

G. The advisory board shall:

(1) Determine the need for an inventory of historic cemeteries and isolated graves to be regulated by the department pursuant to this Chapter. The advisory board shall maintain any such inventory.

(2) Adopt such rules, regulations, standards, and grant application procedures necessary to implement the funding provisions of this Chapter, in accordance with the provisions of the Administrative Procedure Act.

(3) Establish priorities and criteria to be considered for grants.

H. Any cemetery association, cemetery corporation, or nonprofit organization that obtains a grant shall advise the director of the division of the progress of the project and verify and provide documentation of any and all expenditures of grant money as deemed necessary and appropriate by the director of the division. The director shall monitor, evaluate, and review the development and quality of projects funded through the fund and report findings to the advisory board.

I. The director of the division may call a meeting of the advisory board at any time if there is a need for consideration and awarding of an immediate grant.

§942. Expenditures

Monies in the fund shall be awarded as determined by the advisory board for the sole purpose of the preservation, protection, and repair of historic cemeteries, tombs, and grave plots in the state of Louisiana. No grant shall be authorized to be made to replace funds that would be available through an applicable perpetual care fund.

§943. Exclusions

The provisions of this Chapter shall not apply to the following:

(1) A cemetery operated under the authority and regulation of the board.

(2) An unmarked burial site that is covered under the authority and regulation of the division or Chapter 10-A of Title 8 of the Louisiana Revised Statutes of 1950.

(3) Normal cleaning of grave spaces and grounds maintenance.

(4) Grave spaces within abandoned cemeteries that are less than fifty years old.