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HOUSE BILL NO. 452
INTRODUCED BY J. WINDY BOY
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING LAWS RELATED TO CONSULTATION OF TRIBES REGARDING IMPACTS TO HERITAGE PROPERTIES; REDEFINING "HERITAGE PROPERTY"; REQUIRING CONSULTATION WITH TRIBAL HISTORIC PRESERVATION OFFICERS; EXPANDING RULEMAKING AUTHORITY; EXPANDING LANDS ON WHICH IMPACTS TO HERITAGE PROPERTIES MUST BE ASSESSED; AND AMENDING SECTIONS 22-3-421, 22-3-423, 22-3-424, 22-3-428, 22-3-429, 22-3-430, 22-3-432, 22-3-433, 22-3-435, AND 82-4-434, MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 22-3-421, MCA, is amended to read:
"22-3-421. Definitions. As used in this part, unless the context clearly indicates otherwise, the following definitions apply:
(1) "Affected property owner" means a person or entity whose real property will be physically affected by the activity of an applicant or whose real property is proposed for incorporation into a historic district proposed as eligible for listing in the National Register of Historic Places.
(2) "Antiquities permit" means the permit granted for excavation, removal, or restoration of heritage properties or paleontological remains provided for in 22-3-432.
(3) "Applicant" means a person who applies to a governmental entity, including a federal, state, or local governmental entity, for a permit, license, or lease on property owned by the governmental entity.
(4) "Heritage property" means any district, site, building, structure, or object located upon or beneath the earth or under water that is significant in American history, architecture, archaeology, or culture. The term includes the ancestral homelands of each state and federally recognized tribe for which there is a tribal government in Montana.
(5) "Historic preservation office" means the office within the Montana historical society provided for in 2-15-1512.
(6) "Historic preservation officer" means the officer provided for in 2-15-1512.
(7) "Paleontological remains" means fossilized plants and animals of a geological nature found upon or beneath the earth or under water which are rare and critical to scientific research.
(8) "Preservation review board" means the board provided for in 2-15-1512.
(9) "Register" means the National Register of Historic Places, the official list of the nation's heritage properties worthy of preservation because of national, state, or local significance.
(10) "Registered property" means any heritage property listed in the register.
(11) "State agency" means any executive agency of the state of Montana."
Section 2. Section 22-3-423, MCA, is amended to read:
"22-3-423. Duties of historic preservation officer. Subject to the supervision of the director of the historical society, the historic preservation officer has the following duties and responsibilities:
(1) follow necessary procedures to qualify the state for money that is now or will be made available under any act of congress of the United States or otherwise for purposes of historic preservation;
(2) conduct an ongoing statewide survey to identify and document heritage properties and paleontological remains;
(3) maintain a state inventory file of heritage properties and paleontological remains and maintain a repository for all inventory work done in the state;
(4) evaluate and formally nominate potential register properties according to the criteria established by the register;
(5) prepare and annually review the state preservation plan, register nominations, and historic preservation grant activity;
(6) maintain, publish, and disseminate information relating to heritage properties and paleontological remains in the state;
(7) cooperate with and assist local, state, and federal government agencies in comprehensive planning that allows for the preservation of heritage properties and paleontological remains;
(8) enter into cooperative agreements with the federal government, local governments, and other governmental entities or private landowners or the owners of objects to ensure preservation and protection of registered properties;
(9) adopt rules outlining procedures by which a state agency that has no approved rules under 22-3-424(1) shall systematically consider heritage properties or paleontological remains on public and private lands owned by the state and avoid, whenever feasible, state actions or state assisted or licensed actions that substantially alter the properties;
(10) respond to requests for consultation under section 106 of the National Historic Preservation Act, as provided for in 22-3-429;
(11) develop procedures and guidelines for the evaluation of heritage property or paleontological remains as provided in 22-3-428;
(12) protect from disclosure to the public any information relating to the location or character of heritage properties when disclosure would create a substantial risk of harm, theft, or destruction to the resources or to the area or place where the resources are located;
(13) report the information gathered pursuant to 22-3-422(6), along with any recommendations by the historic preservation officer or the review board, to an appropriate legislative interim committee established under Title 5, chapter 5, part 2. The report required in this subsection must also be incorporated into the biennial report required to be submitted to the governor and the legislature under 22-3-107(8).
(14) any other necessary or appropriate activity permitted by law to carry out and enforce the provisions of this part."
Section 3. Section 22-3-424, MCA, is amended to read:
"22-3-424. Duties of state agencies. State agencies, including the Montana university system, shall:
(1) in consultation with the historical society and tribes in Montana adopt rules for the identification and preservation of heritage properties and paleontological remains on public and private lands owned by the state to avoid, whenever feasible, state actions or state assisted or licensed actions that substantially alter the heritage properties or paleontological remains on lands owned by the state or, in the absence of such rules, act in compliance with rules adopted under 22-3-423;
(2) identify and develop, in consultation with the historic preservation officer and each tribal historic preservation officer in Montana, methods and procedures to ensure that the identification and protection of heritage properties and paleontological remains on public and private lands owned by the state are given appropriate consideration in state agency decisionmaking;
(3) deposit in the historic preservation office all inventory reports, including maps, photographs, and site forms, of heritage properties and paleontological remains; and
(4) pursuant to 22-3-422(6), provide to the preservation review board on the first Tuesday in February of every even-numbered year the following information:
(a) a list of the heritage properties managed by the agencies as those properties have been identified pursuant to this section;
(b) the status and condition of each heritage property;
(c) the stewardship efforts in which the agencies have engaged to maintain each heritage property and the cost of those activities;
(d) a prioritized list of the maintenance needs for the properties; and
(e) a record of the agencies' compliance with subsections (1) and (2)."
Section 4. Section 22-3-428, MCA, is amended to read:
"22-3-428. Heritage property -- procedures and guidelines required. The historic preservation officer shall adopt standardized procedures and guidelines for inventorying, collecting data on, documenting, and evaluating all types of heritage property. In adopting the standardized procedures and guidelines, the historic preservation officer may consult with state and federal agencies experienced in reviewing and mitigating environmental and cultural impacts caused by development of properties and shall consult with each tribal historic preservation officer in Montana."
Section 5. Section 22-3-429, MCA, is amended to read:
"22-3-429. Requests for consultation -- public notice -- appeal of findings. (1) A federal or state entity that acts upon a proposed federal or state action or an application for a federal, state, or local permit, license, lease, or funding may shall request the views of the historic preservation officer and the relevant tribal historic preservation officers in Montana concerning:
(a) the recommended eligibility for a register listing of any heritage property or paleontological remains;
(b) the effects of a proposed action, activity, or undertaking on heritage property or remains that are found to be eligible for register listing; and
(c) the appropriateness of a proposed plan for the avoidance or mitigation of effects.
(2) A request for comment pursuant to 16 U.S.C. 470f may be made simultaneously with a request pursuant to subsection (1). The historic preservation officer and each tribal historic preservation officer shall respond in writing to a request within 30 calendar days of receiving the request and shall address each property in the request and each topic of the request. In the event that an agency requests simultaneous consultation for two or more criteria under this section, the agency and historic the preservation officer officers may extend the 30-day review period by mutual agreement. If the historic a preservation officer fails to comment within that time, that failure is construed as concurrence with the agency's recommendation. In the event of failure to comment on a specific undertaking, the historic a preservation officer may not change a finding for a heritage property at a later date.
(3) If the proposed finding is that a heritage property or paleontological remains are involved and that a proposed activity will have an adverse impact on the property or remains, the proposed finding must address all properties or remains involved and describe the characteristics that illustrate the qualities that make the property or remains eligible for inclusion in the register. If the proposed finding includes a conclusion that a property or remains may be eligible but additional information or study is needed to reach an eligibility finding, the finding must specify the type and amount of information required in accordance with standards and guidelines as provided in 22-3-428.
(4) At the time that the state or federal agency requests the views of the historic preservation officer officers as provided in subsection (1), the agency shall provide notice to the applicant, affected property owners, and other interested persons of the request for consultation and shall identify locations where the submitted materials may be reviewed.
(5) The applicant and any affected property owners have 20 days in which to appeal the historic preservation officer's finding officers' findings to the director of the historical society. The appeal notice must include a written statement of reasons for the appeal and any additional supporting information.
(6) The director of the historical society shall issue a final finding within 30 days of the expiration of the 20-day appeal period provided for under subsection (5). The issuance of this finding does not limit the rights of any applicant or affected property owner to challenge a finding under an existing federal law, regulation, or regulatory or administrative process.
(7) If the applicant or an affected property owner is not satisfied with the finding of the director of the historical society concerning the eligibility of the property or remains for listing in the register or a finding of adverse effect to the property, the entity or property owner may appeal the finding to the district court in either Lewis and Clark County or a county in which affected property is located. Appeal may be taken by filing a petition with the district court citing the decision by the director of the historical society and the evidence upon which the director relied. On appeal, the district court may consider any documents supporting or not supporting the finding, the written comments received by the director of the historical society, and any additional evidence that may be submitted to the court. The district court may substitute its judgment for the judgment of the director of the historical society as to the weight of the evidence.
(8) A state agency may not require a historical or archaeological survey as a condition of applying for or receiving a state or local permit, license, lease, or funding for a project to reconstruct or maintain an irrigation ditch or appurtenant structures or equipment when the ditch or appurtenant structures or equipment are in use or have been in use within the past 10 years, if the reconstruction or maintenance will occur within the existing ditch easement and if the project is not on land owned by the state."
Section 6. Section 22-3-430, MCA, is amended to read:
"22-3-430. Avoidance and mitigation of impacts. (1) Avoidance of impacts to heritage property or paleontological remains is preferred. Avoidance may not be construed to constitute neglect of the property or anticipatory demolition.
(2) If it is not feasible to avoid impacts to heritage property or paleontological remains, a mitigation plan must be developed by the agency, in consultation with the applicant, to minimize adverse effects to the property or remains. Mitigation must be directed at the characteristics of the property that make it eligible for listing in the register. If requested by the agency, the historic preservation officer and relevant tribal historic preservation officers in Montana shall identify suggested mitigation actions in writing at the time that the historic preservation officer submits officers submit a proposed finding under 22-3-429."
Section 7. Section 22-3-432, MCA, is amended to read:
"22-3-432. Antiquities permits. (1) A person may not excavate, remove, or restore any heritage property or paleontological remains on public or private lands owned by the state without first obtaining an antiquities permit from the historic preservation officer.
(2) Antiquities permits are to be granted only after careful consideration of the application for a permit and after consultation with the appropriate state agency and tribe or tribes, if applicable. Permits are subject to strict compliance with the following guidelines:
(a) Antiquities permits may be granted only for work to be undertaken by reputable museums, universities, colleges, or other historical, scientific, or educational institutions, societies, or persons with a view toward dissemination of knowledge about cultural properties, provided a permit may not be granted unless the historic preservation officer is satisfied that the applicant possesses the necessary qualifications to guarantee the proper excavation of those sites and objects that may add substantially to knowledge about Montana and its antiquities.
(b) The antiquities permit must specify that a summary report of the investigations, containing relevant maps, documents, drawings, and photographs, must be submitted to the historic preservation officer. The historic preservation officer shall determine the appropriate time period allowable between all work undertaken and submission of the summary report.
(3) All heritage property and paleontological remains collected under an antiquities permit are the permanent property of the state and must be deposited in museums or other institutions within the state or loaned to qualified institutions outside the state, unless eligible for repatriation with a tribe or otherwise provided for in the antiquities permit.
(4) An antiquities permit is not a substitution for any other type of permit that a state agency may require for other purposes."
Section 8. Section 22-3-433, MCA, is amended to read:
"22-3-433. Environmental review process. (1) Each state agency responsible for the preparation of an environmental impact statement in accordance with the Montana Environmental Policy Act shall, as a part of its evaluation and study process, consult with and obtain the comments of the historic preservation officer and relevant tribal historic preservation officers in Montana concerning the identification and location of heritage properties and paleontological remains on public and private lands owned by the state that may be adversely impacted by the proposed action. However, where the grant of an interest in state land requires the preparation of an environmental impact statement under the Montana Environmental Policy Act, the environmental impact statement shall be limited to an evaluation of the heritage properties and paleontological remains located in, on, under, and within only the affected state land.
(2) When heritage properties and paleontological remains are located and identified as described in subsection (1), the responsible state agency, in consultation with the historic preservation officer, relevant tribal historic preservation officers, and the preservation review board, shall include as part of its environmental impact statement a plan for the avoidance or mitigation of damage to heritage properties and paleontological remains to the greatest extent practicable. Whenever necessary or appropriate, the state agency may shall require an applicant for a lease, permit, license, or other approval for use of public or private land owned by the state to develop an avoidance or mitigation plan in consultation with the historic preservation officer, the relevant tribal historic preservation officer or officers, and the preservation review board."
Section 9. Section 22-3-435, MCA, is amended to read:
"22-3-435. Report of discovered heritage properties or paleontological remains. Any person conducting activities, including survey, excavation, or construction, who discovers on any lands owned by the state any heritage property or paleontological remains as defined in 22-3-421 or who finds that an operation licensed or otherwise entitled by the state may damage heritage properties or paleontological remains on any lands owned by the state shall promptly report to the historic preservation officer the discovery of such findings and shall take all reasonable steps to ensure preservation of the heritage property or paleontological remains."
Section 10. Section 82-4-434, MCA, is amended to read:
"82-4-434. Plan of operation -- requirements. (1) The department shall immediately submit a plan of operation received in a permit or permit amendment application involving expansion of the permit area to the state historic preservation office and relevant tribal historic preservation officers in Montana for evaluation of possible archaeological or historical values in the area, including heritage properties as defined in 22-3-421, to be mined.
(2) The department shall accept a plan of operation if the department finds that the plan complies with the requirements of this part and the rules adopted pursuant to this part and that after the opencut operation is completed, the affected land will be reclaimed to a productive use. Once the plan of operation is accepted by the department, it becomes a part of the permit but is subject to annual review and amendment by the department. Any amendment by the department must comply with the provisions of 82-4-436(2).
(3) The department may not accept a plan of operation unless the plan provides:
(a) that the affected land will be reclaimed for one or more specified uses, including but not limited to forest, pasture, orchard, cropland, residence, recreation, industry, habitat for wildlife, including food, cover, or water, or other reasonable, practical, and achievable uses;
(b) that whenever the opencut operation results in a need to prevent acid drainage or sedimentation on or in adjoining lands or streams, catchments, ponds, or other reasonable devices to control water drainage and sediment will be constructed and maintained, provided the devices will not interfere with other landowners' rights or contribute to water pollution;
(c) that soil and other suitable overburden will be salvaged and replaced on affected land, when required by the postmining land use, after completion or termination of that particular phase of the opencut operation. The depth of soil and other suitable overburden to be placed on the reclaimed area must be specified in the plan.
(d) that grading will result in a postmining topography conducive to the designated postmining land use;
(e) that waste will be buried on site in a manner that protects water quality and is compatible with the postmining land use or will be disposed of off site in accordance with state laws and rules;
(f) that all access, haul, and other support roads will be located, constructed, and maintained in a manner that controls and minimizes erosion;
(g) that the opencut operation will be conducted to avoid range and wildland fires and spontaneous combustion and that open burning will be conducted in accordance with suitable practices for fire prevention and control. Approval of the plan for fire prevention and control under this part does not relieve the operator of the duty to comply with the air quality permitting and protection requirement of Title 75, chapter 2.
(h) that archaeological and historical values on affected lands, including heritage properties, will be given appropriate protection;
(i) that except for those postmining land uses that do not require vegetation, each surface area of the mined premises that will be disturbed will be revegetated when its use for the opencut operation is no longer required;
(j) that seeding and planting will be done in a manner to achieve a permanent vegetative cover that is suitable for the postmining land use and that retards erosion;
(k) that reclamation will be as concurrent with the opencut operation as feasible and will be completed within a specified length of time;
(l) that surface water and ground water will be given appropriate protection, consistent with state law, from deterioration of water quality and quantity that may arise as a result of the opencut operation;
(m) that noise and visual impacts on residential areas will be minimized to the degree practicable through berms, vegetation screens, and reasonable limits on hours of operation; and
(n) that any additional procedures, including monitoring, that are necessary, consistent with the purposes of this part, to prevent significant physical harm to the affected land or adjacent land, structures, improvements, or life forms will be implemented.
(4) If reclamation according to the plan of operation has not been completed in the time specified, the department, after 30 days' written notice, shall order the operator to cease mining and, if the operator does not cease, may issue an order to reclaim, a notice of violation, or an order of abatement or may institute an action to enjoin further operation and may sue for damages for breach of the conditions of the permit, for payment of the performance bond, or for both.
(5) (a) At any time during the term of the permit, the operator may for good reason submit to the department a new plan of operation or amendments to the existing plan, including extensions of time for reclamation.
(b) The department may approve the proposed new plan of operation or amendments to the existing plan if:
(i) the new plan of operation or amendments comply with the requirements of this section; and
(ii) (A) the operator has in good faith conducted opencut operations according to the existing plan of operation; or
(B) it is highly improbable that reclamation will be successful unless the existing plan of operation is replaced or amended.
(6) The permit, plan of operation, and amendments accepted by the department are a public record and are open to inspection."
NEW SECTION. Section 11. Notification to tribal governments. The secretary of state shall send a copy of [this act] to each tribal government located on the seven Montana reservations and to the Little Shell Chippewa tribe.
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