A. It is unlawful for a person or the person's agent or employee to excavate with the use of mechanical earthmoving equipment an archaeological site for the purpose of collecting or removing objects of antiquity if the archaeological site is located on private land in this state, unless the person has first obtained a permit issued pursuant to the provisions of this section for the excavation. As used in this section, "archaeological site" means a location where there exists material evidence of the past life and culture of human beings in this state but excludes the sites of burial of human beings.

B. Permits for excavation pursuant to Subsection A of this section may be issued by the committee upon approval by the state archaeologist and the state historic preservation officer if the applicant:

(1) submits written authorization for the excavation from the owner of the land;

(2) furnishes satisfactory evidence of being qualified to perform the archaeological excavation by experience, training and knowledge;

(3) submits a satisfactory plan of excavation for the archaeological site and states in the plan the method by which excavation will be undertaken; and

(4) agrees in writing, upon the completion of the excavation, to submit a summary report to the committee of the excavation, which report shall contain relevant maps, documents, drawings and photographs, together with a description of the archaeological specimens removed as a result of the excavation. Failure to file the summary report shall be grounds for refusing issuance of a future permit to the person.

C. All archaeological specimens collected or removed from the archaeological site as a result of excavation pursuant to Subsections A and B of this section shall be the property of the person owning the land on which the site is located.

D. Nothing in this section shall be deemed to limit or prohibit the use of the land on which the archaeological site is located by the owner of the land or to require the owner to obtain a permit for personal excavation on the owner's own land; provided that no transfer of ownership is made with the intent of excavating archaeological sites as prohibited in this section; and provided further that this exemption does not apply to marked or unmarked burial grounds.

E. A person convicted of violating the provisions of this section is guilty of a misdemeanor and shall be punished by a fine not to exceed one thousand dollars ($1,000) and, in accordance with the provisions of the Forfeiture Act [Chapter 31, Article 27 NMSA 1978], shall forfeit to the state all equipment used in committing the violation for which the person is convicted.

History: 1953 Comp., § 4-27-12.1, enacted by Laws 1977, ch. 75, § 1; 1989, ch. 267, § 2; 2015, ch. 152, § 14.

The 2015 amendment, effective July 1, 2015, provided that equipment used in committing a violation of the provisions of this section are subject to forfeiture in accordance with the provisions of the Forfeiture Act; in Subsection A, after "unlawful for", deleted "any" and added "a", after "person or", deleted "his" and added "the person's", after "antiquity", deleted "when" and added "if", after "this section", deleted "an"; in Subsection B, after "preservation officer", deleted "when" and added "if"; in Subsection D, after "excavation on", deleted "his" and added "the owner's"; and in Subsection E, deleted "Any" and added "A", and after "($1,000) and, in", deleted "addition thereto" and added "accordance with the provisions of the Forfeiture Act".

"Archaeological site". — The definition of "archaeological site," in Subsection A, is not void for vagueness. State v. Turley, 1980-NMCA-167, 96 N.M. 592, 633 P.2d 700, rev'd on other grounds, 96 N.M. 579, 633 P.2d 687 (1981), overruled on other grounds by United States Brewers Ass'n v. Director of N.M. Dep't of ABC, 1983-NMSC-059, 100 N.M. 216, 668 P.2d 1093, appeal dismissed, 465 U.S. 1093, 104 S. Ct. 1581, 80 L. Ed. 2d 115 (1984).

Landowner exemption from permit requirement covers landowner's employee or agent. — In exempting the landowner from the permit requirement of Subsection A, Subsection D also allows the landowner to use an employee or agent to accomplish the task of excavation without a permit. Turley v. State, 1981-NMSC-081, 96 N.M. 579, 633 P.2d 687, overruled on other grounds by United States Brewers Ass'n v. Director of N.M. Dep't of ABC, 1983-NMSC-059, 100 N.M. 216, 668 P.2d 1093, appeal dismissed, 465 U.S. 1093, 104 S. Ct. 1581, 80 L. Ed. 2d 115 (1984).

Law reviews. — For annual survey of New Mexico law relating to property, see 13 N.M.L. Rev. 435 (1983).

For note, "Cultural Properties Act — Turley v. State and the New Mexico Cultural Properties Act: A Matter of Interpretation", see 13 N.M.L. Rev. 737 (1983).