Disturbing a marked burial ground consists of knowingly and willfully disturbing or removing the remains, or any part of them, or any funerary object, material object or associated artifact of any person interred in any church, churchyard, cemetery or marked burial ground or knowingly and willfully procuring or employing any other person to disturb or remove the remains, or any part of them, or any funerary object, material object or artifact associated with any person interred in any church, churchyard, cemetery or marked burial ground, other than pursuant to an order of the district court, the provisions of Section 24-14-23 NMSA 1978 or as otherwise specifically permitted by law. As used in this section "marked burial ground" means any interment visibly marked according to traditional or customary practice.

Whoever commits disturbing a marked burial ground is guilty of a fourth degree felony and shall be punished by a fine not to exceed five thousand dollars ($5,000) or by imprisonment for a definite term of eighteen months or both.

History: 1953 Comp., § 40A-12-2, enacted by Laws 1963, ch. 303, § 12-2; 1989, ch. 267, § 3.

Cross references. — For permit for disinterment and reinterment, see 24-14-23 NMSA 1978.

The 1989 amendment, effective June 16, 1989, substituted "a marked burial ground" for "the remains of a dead person" in the catchline; in the first paragraph, substituted the present first sentence for "Disturbing the remains of a dead person consists of knowingly disturbing or removing the remains, or any part thereof, of any person permanently interred in any church, churchyard or cemetery, other than pursuant to an order of the district court", and added the second sentence; and substituted the present language of the second paragraph for "Whoever commits disturbing the remains of a dead person is guilty of a misdemeanor."

No private right of action. — There is no private right of action to enforce this section. Eisert v. Archdiocese of Santa Fe, 2009-NMCA-042, 146 N.M. 179, 207 P.3d 1156, cert. denied, 2009-NMCERT-004, 146 N.M. 641, 213 P.3d 791.

This section is in pari materia with § 58-17-3 and should be construed with reference to the definition of "cemetery" supplied by Section 58-17-3 NMSA 1978. 1987 Op. Att'y Gen. No. 87-31.

Property held not to be cemetery. — Private property discovered to contain human remains presumed to be soldiers killed in the battle of Glorieta on March 28, 1862, is not a cemetery within the meaning of this section so as to require the museum division of the office of cultural affairs to petition the district court prior to excavating the site and disinterring the remains pursuant to the Cultural Properties Act, Sections 18-6-1 to 18-6-7 NMSA 1978. 1987 Op. Att'y Gen. No. 87-31.

Necessary party to disinterment actions. — Since when a district court orders disinterment a legal interest of the health department (now the department of health) will of necessity be directly affected, the department is a necessary or indispensable party in disinterment actions brought in the district courts of this state. 1966 Op. Att'y Gen. No. 66-116.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 22A Am. Jur. 2d Dead Bodies § 107.

Dead bodies: liability for improper manner of reinterment, 53 A.L.R.4th 394.

Liability for desecration of graves and tombstones, 77 A.L.R.4th 108.

25A C.J.S. Dead Bodies § 10.