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Rule R850-60. Cultural Resources.

As in effect on August 1, 2009

Table of Contents

• R850-60-100. Authorities.
• R850-60-200. Definitions.
• R850-60-300. Authorization of Cultural Resource Work.
• R850-60-400. Archaeological Permits.
• R850-60-500. Delegation of Permitting Authority.
• R850-60-600. Identifying Historic Properties.
• R850-60-700. Evaluating Eligibility.
• R850-60-800. Assessing Effects.
• R850-60-900. Discoveries.
• R850-60-1000. Emergency Undertakings.
• R850-60-1100. Programmatic Agreements.
• R850-60-1200. Records.
• R850-60-1300. Ownership and Management of Collections.
• KEY
• Date of Enactment or Last Substantive Amendment
• Notice of Continuation
• Authorizing, Implemented, or Interpreted Law

R850-60-100. Authorities.

This rule implements Sections 6, 8, 10, and 12 of the Enabling Act, Articles X and XX of the Utah Constitution, and Sections 53C-1-302(1)(a)(ii) and 53C-2-201(1)(a) which authorize the Director of the School and Institutional Trust Lands Administration to prescribe the management of cultural resources on trust lands. This rule outlines the manner by which the agency shall, pursuant to Section 9-8-404, take into account the effect of trust land uses and other land uses on any district, site, building, structure or specimen that is included in or eligible for inclusion in the State Register or National Register of Historic Places, and allow the State Historic Preservation Officer a reasonable opportunity to comment with regard to the undertaking. This rule also outlines the manner by which the agency shall, pursuant to Section 9-8-305(2), issue permits for archaeological surveys and excavations on trust lands.

R850-60-200. Definitions.

For purposes of this rule:

1. "Area of potential effects" means the geographic area or areas established by the agency within which an undertaking may cause changes in the character or use of historic properties, if any such properties exist.

2. "Discovery property" means any site or archaeological resources that are encountered, found or otherwise made known during the course of land use conducted subsequent to approval of that use by the agency.

3. "Historic property" means any prehistoric or historic district, site, building or structure, or object included in, or eligible for inclusion in, the National Register of Historic Places. This term includes, for the purposes of this rule, artifacts, records, and remains that are related to and located within such historic properties.

4. "Interested persons" means those organizations and individuals that are concerned with the effects of an undertaking on historic properties and have expressed their concern to the agency.

5. "Local government" means any city, county, township, municipality or other general purpose subdivision of the state.

6. "National Register" means the National Register of Historic Places, maintained by the United States Secretary of the Interior.

7. "National Register Criteria" means the criteria established by the Secretary of the Interior for use in evaluating the eligibility of cultural resources for the National Register; these criteria are found in 36 CFR Part 60, hereby incorporated by reference.

8. "Undertaking" means any trust land use or other land use that can result in changes in the character or use of historic properties, if any such historic properties are located in the area of potential effects.

R850-60-300. Authorization of Cultural Resource Work.

1. No person shall alter, remove, injure or destroy cultural resources on trust lands, without written permission from the agency.

2. No person shall survey or excavate archaeological resources on trust lands without first obtaining an archaeological permit from the agency.

A condition of permission shall be that the permittee shall provide the agency with a copy of all records resulting from such investigations. No requirement for permission shall be made for non-documentary, non- disturbing, purely recreational visitation of sites on trust lands.

3. Any person found in violation of R850-60-300 will be subject to civil and criminal penalties.

R850-60-400. Archaeological Permits.

1. The agency shall issue archaeological survey and excavation permits, after consultation with SHPO, to persons who demonstrate compliance with the following requirements:

(a) the minimum standards for education and experience set by federal regulation, codified as 43 CFR 7.8(a)(1), hereby incorporated by reference. Permit applicants shall submit resumes or vitae as proof of conformity with these minimum standards.

(b) the ability to conduct the proposed work in a manner consistent with current professional practice, including access to proper equipment, facilities, and other personnel who are qualified to assist in executing the proposed work. Permit applicants shall submit the appropriate documentation as proof of conformity with this requirement.

(c) written proof that an agreement with the Utah Museum of Natural History (UMNH) is in place for curation of all recovered archaeological materials, specimens and collections at either the UMNH or another repository or curation facility approved by the UMNH.

2. All work conducted under an archaeological survey permit shall be conducted in accordance with current professional practice and the terms of the permit.

3. For archaeological excavation permits, the agency shall require that the permit applicant provide the following:

(a) A research design which explicitly states the questions to be addressed; the reasons for conducting the work; defines the methods to be used; describes the analysis to be performed; outlines the expected results and the plans for reporting; evaluates the expected contributions of the project work to archaeological science and the field of anthropology.

(b) Written proof of consultation with the appropriate Indian tribe, if required by Section 9-9- 403.

(c) Any other information requested by the agency.

4. All archaeological permits shall be issued with the following requirements:

(a) The permittee shall provide reports documenting results of the work and data obtained, and deliver relevant records, site forms, and reports to the agency within the time specified in the permit.

(b) Any permittee who discovers human remains shall notify the agency and other appropriate agencies pursuant to Section 9-9-403 and cease further activity, except in compliance with Section 9-9-403.

(c) If the permittee fails to comply with any statute, rule or the provisions of the permit, the agency may terminate the permit and either continue the study or grant another permittee the responsibility or opportunity to complete the permitted work.

5. The duration of archaeological permits shall be the following:

(a) Survey permits shall be issued for one year.

(b) Excavation permits shall be issued for the period of time necessary to accomplish the proposed work. The period of time may be extended by the agency upon application by the permittee.

(c) The UMNH shall be consulted if the duration of an excavation permit is to be modified.

6. The agency may require other provisions as necessary.

R850-60-500. Delegation of Permitting Authority.

Authority for permitting cultural resources surveys, excavations, or both under R850-60-300 may be delegated to the Division of State History through a Memorandum of Agreement (MOA) between the agency and the Division of State History. The delegation shall be contingent upon terms or conditions which the director deems appropriate and in the best interest of the trust. Authority for permitting surveys shall either be delegated annually by MOA to the Division of State History or retained annually by the agency. The agency may reserve in the MOA the right to issue an excavation permit for a specific undertaking upon a written finding that the best interest of the trust requires that the excavation be conducted pursuant to R850-60-400. The delegation may be rescinded through termination of the MOA after ten day's notice of the intent to terminate the MOA published in the Utah State Bulletin.

R850-60-600. Identifying Historic Properties.

1. Following the agency's determination that a proposed trust land use or other land use constitutes an undertaking the agency shall establish the undertaking's area of potential effects. Thereafter, the agency shall review existing information about historic properties that may be affected by the undertaking. As part of this process, the agency may seek information from the State Historic Preservation Officer (SHPO), Indian tribes, local governments, state or federal agencies or any other interested parties likely to have knowledge or concerns about cultural resources in the area. The agency may delegate this collection of information to an appropriate person.

2. Based on this assessment, the agency shall determine whether a field survey will be required to identify historic properties.

3. If the agency determines that a field survey will be required, the agency shall make a reasonable and good faith effort to identify historic properties that might be affected by an undertaking and shall gather sufficient information to evaluate the eligibility of these properties for the National Register. The agency shall utilize the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (48 FR 44716), incorporated by reference, in making this effort.

4. The agency may conduct field surveys on school and institutional trust lands in the order of priority determined by the agency. The agency shall assign a higher priority to those field surveys for proposed uses which the agency has determined will best fulfill the trust land management objectives in R850-2-200. Agency personnel shall not normally conduct field surveys for mineral exploration or development activity, easements, or projects where federal, state, or local government agencies are the applicants.

5. School and institutional trust land applicants may conduct authorized field surveys at their own expense.

(a) If the applicant is the successful bidder for the trust land use, no reimbursement shall be made by the agency.

(b) If the applicant is not the successful bidder for the trust land use, the agency shall reimburse the applicant for the cost of the survey, provided that the agency has previously authorized the estimated maximum cost of the survey prior to its initiation.

R850-60-700. Evaluating Eligibility.

1. The agency shall make a determination of the eligibility for the National Register for any site identified within the undertaking's area of potential effects.

(a) The agency shall follow the Secretary of the Interior's Standards and Guidelines for Evaluation in applying the National Register Criteria to any sites that may be affected by the undertaking.

(b) The passage of time or changing perceptions of significance may justify re-evaluation of sites that were previously determined to be eligible or ineligible.

2. The agency shall consult the SHPO regarding the agency's determination of eligibility. If the SHPO does not provide comment within 15 days of receipt, the SHPO is presumed to agree with the agency's determination of eligibility.

3. If the agency determines the property is eligible, the historic property will be assessed for effect in accordance with R850-60-800.

R850-60-800. Assessing Effects.

1. The agency shall assess the effect of a proposed trust land use or other land use on historic properties by applying the Criteria of Effect and Adverse Effect found in 36 CFR 800.9, hereby incorporated by reference.

2. The agency shall consult the SHPO regarding the finding of effect. If the SHPO does not provide the agency with comment within 15 days, or 30 days if consultation regarding eligibility is included, the SHPO is presumed to agree with the agency's finding of effect.

3. Based upon the determination made in R850-60-600, R850-60-700 and R850-60-800, the agency shall take into account the effect of the undertaking on the historic property.

4. The agency may establish treatment options in consultation with the SHPO that may include:

(a) archaeological data recovery;

(b) "alternative" or "creative" mitigation;

(c) physical treatment to alleviate or minimize the adverse effect(s);

(d) historic property documentation; or

(e) simple case documentation.

R850-60-900. Discoveries.

1. Any user of trust lands shall immediately cease any use which may threaten an unanticipated discovery property upon discovery until such time as the discovery property has been evaluated and treated to the satisfaction of the agency.

R850-60-1000. Emergency Undertakings.

The agency may waive cultural resource management considerations when responding to wildland fires, flood control and other emergency actions.

R850-60-1100. Programmatic Agreements.

The agency may enter into programmatic agreements with the SHPO, or with other state or federal agencies, and with local governments for compliance with Section 9-8-404 or other pertinent state or federal statutes. The agency may also cooperate with federal agencies in federal programmatic agreements where practicable and appropriate.

R850-60-1200. Records.

1. The agency shall submit one copy each of all site forms, survey and data recovery, treatment or mitigation reports prepared by the agency to the SHPO. All similar data prepared by permittees conducting work in accordance with R850-60-400 shall be required to furnish one copy of the results of their investigations to the SHPO.

2. Records and data containing site location information which could jeopardize the integrity of those sites shall be provided protected records status pursuant to Section 63-2-304(25).

R850-60-1300. Ownership and Management of Collections.

Collections recovered from school and institutional trust lands are the property of the respective trust and shall be labeled as belonging to that trust and are held in trust for the beneficiaries by the institution in possession and managed according to state law and the rules of the UMNH.

KEY

cultural resources

Date of Enactment or Last Substantive Amendment

October 17, 1995

Notice of Continuation

June 27, 2007

Authorizing, Implemented, or Interpreted Law

53C-1-302(1)(a)(ii); 53C-2-201(1)(a); 53C-2-301; 9-8-305; 9-8-404