3. Anderson Masonry RequestOctober 4, 1995
City of Kalispell Parks and Recreation
% Mike Baker
312 1st Ave East
Kalispell, MT. 59901
Re:Woodland Park Property Proposal
Dear Mike,
I've enclosed some information on the laws regarding the discovery and
protection of human remains and burial site protection. I've highlited
areas that apply to our situation and hope that we will be aware of how
to handle a discovery, and to preplan for this occurance.
Gary McLean, the Archeologist for the Flathead National Forest, provided me
with the enclosed information and has contacted two tribal committees on
how to handle a discovery on this property. They would follow the pattern
of the law and may be interested in observing the excavation, if and when
that may occur. This would be agreeable to us, as long as there was not a
cost for this.
They have all been helpful and seem relieved that we are looking at this
ahead of time.
I'll look forward to the Council meeting on October 10th, at 6:30 P.M., and
I thank you for your help on this matter!
Sincerely,
Don Anderson
la 002
736
737 ANTIQUITIES 22-3-802
all profits, revenues, royalties, or fees received or all gifts, grants, bequests,
or other contributions collected by the corporation for the benefit of the
property. All funds must be accounted for pursuant to the management
:al objects,
contract and audited quarterly by the society or its designee, and expenditures
tent of in-
of the funds may be used only for the operation, maintenance, preservation,
Eb through
repair, renovation, and management of the property.
History. En. Sec. 3, Ch. 291, L 1M.
igement
part 7
Law Enforcement Officers' Memorial
3-701. Creation of law enforcement officers' memoriaL The
'historic
memorial in the Montana law enforcement museum, located in the old
Montana state prison, Deer Lodge, Montana, which is dedicated to the men
-s in the
and women who have served their communities and the state of Montana as
through
law enforcement officers and have been killed or died in the line of duty, is
tion and
designated as this state's official law enforcement officers' memorial.
History: En. Se*. 1, Ch. 45, L 1991.
affective
.ble local
Part 8
Human Remains and Burial Site Protection
e control
that the
22-3-801. Short title. This part may be cited as the "Human Skeletal
om each
Remains and Burial Site Protection Act'.
Kl®tory: En. Sec. 1, Cis. 748, L 1991.
22-3-502. Legislative findings and intent. (1) The legislature of the
ntracta.
state of Montana finds that:
.jests, or
(a) the state and its citizens have an obligation to protect from disturbance
)eration,
or destruction all human skeletal remains, burial sites, and burial material,
or build-
including those in marked, unmarked, unrecorded, registered, or un-
registered graves or burial grounds located on state or private lands that are
ionprofit
not protected as cemeteries or graveyards under existing state law;
* renova-
(b) marked, unmarked, unrecorded, registered, ar unregistered graves or
corpora-
burial grounds not protected as cemeteries or graveyards under existing state
xcept for
law are increasingly subject to pilferage, disturbance, and destruction for
statutes
commercial purposes, including land development, agriculture, mining, and
es for all
the sale of artifacts;
on of the
(e) private collection of artifacts may result in the destruction of burial
Materials
sites. Existing law reflects the value society places on preserving human
ionprofit
burial sites, but the law does not clearly provide equal and adequate protec-.
rt 2, and
tion or incentives to ensure preservation and protection of all burial sites in
the state regardless of ethnic origin, burial context, or age.
urred for
(d) while some human skeletal remains and burial sites maybe of imterest
d by the
to science, the needs of the scientific community to gather information and
31e, Title
material from burial sites must be balanced with the legal, moral, and
religious rights and obligations of tribal groups, next of kin, or descendants;
ianaging
(e) preservation in place is the preferred policy for all human skeletal
stitution
remains, burial sites, and burial material; and
I Ul 11J v4 1l: U4
22-3-803 LIBRARIES, ARTS, AND IQUITIES 738
(f) notwithstanding any other provision of law, this part is the exclusive
law governing the treatment of human skeletal remains, burial sites, and
burial materials.
(2) It is the intent of the legislature to:
(a) ensure that all burials be accorded equal treatment and respect for
human dignity without reference to ethnic origin, cultural background, or
religious affiliation;
(b) provide adequate protection for all interests related to any burial site
encountered during archaeological excavation or agricultural, mining, con.
struction, or other ground -disturbing activity on state and, rivets 1.Aciti
c recognize ` ;`-eoTcerns,��aind obligations of those having a
kinship, tribal, cultural, or religious affiliation with the burial site and
balance those interests against the interests of scientists, landowners, and
developers;
(d) provide to the board an exemption from the open meeting and public
records laws when public disclosure of the location of a burial site could result
in pilferage, disturbance, or destruction of the site; and
(e) recognize the need for forensic examination of human skeletal
remains, burial sites, and burial material if the county coroner, county
attorney, or state medical examiner determines an examination is necessary
under state law.
History., En. See. 2, Ch. 748, L. 1991.
22-3-803. Definitions. As used in this part, the following definitions
apply:
(1) "Board" means the burial preservation board established in 22-3-804.
(2) "Burial material" means any item found at the burial site or with the
human skeletal remains and directly associated with the burial or burial site.
(3) "Burial site" means, except for cemeteries and graveyards protected
under existing state law, any natural or prepared physical location, whether
originally below, on, or above the surface of the earth, into which human
remains were intentionally deposited as a part of the death rites or ceremonies
of a culture.
(4) "Human skeletal remains" means any part of the human body in any
state of decomposition taken from a burial site.
(a) "Marked, unmarked, unrecorded, registered, or unregistered grave or
burial ground" means any place, except a cemetery or graveyard protected
under existing state law, where human skeletal remains are or have been
interred.
(6) "Scientifically justifiable" means that the human skeletal remains or
burial material has a potential to address specific research questions in the
science of anthropology, history, or biology.
(7) `Tribal group" means an Indian tribe recognized by the United States
secretary of the interior or recognized as a tribe by other Indian nations.
History: En. Sec. 3, Ch. 7A I.1991.
22-3-804. Board — composition — rights — responsibilities. (1)
There is a burial preservation board. The board is composed of:
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(a) one representative of each of the seven reservations, appointed by the
governor from a list of up to three nominees provided by each of the respective
tribal governments;
(b) one person appointed by the governor from a list of up to three
nominees submitted by the Little Shell band of Chippewa Indians;
(c) one person appointed by the governor from a list of up to three
nominees submitted by the Montana state historic preservation officer;
(d) one representative of the Montana archaeological association ap-
pointed by the governor from a list of up to three nominees submitted by the
Montana archaeological association;
(e) one physical anthropologist appointed by the governor;
(f) one representative of the Montana coroners' association appointed by
the governor from a list of up to three nominees submitted by the Montana
coroners' association; and
(g) one representative of the public, appointed by the governor, who is not
associated with tribal governments; state government; the fields of historic
preservation, archaeology, or anthropology, or the Montana coroners' associa-
tion.
(2) Members of the board shall serve staggered 2-year terms, A vacancy
on the board must be filled in the same manner as the original appointment
and only for the unexpired portion of the term.
(3) The board shall:
(a) provide for the establishment and maintenance of a registry of burial
sites located in the state;
(b) designate the appropriate member or members of the board or a
representative or representatives of the board to conduct a field review upon
notification of the discovery of human skeletal remains, a burial site, or buried
materials;
(c) assist interested landowners in the development of agreements with
the board for the treatment and disposition, with appropriate dignity, of
human skeletal remains and burial material;
(d) mediate, upon application of either party, disputes that may arise
between a landowner and known descendants that relate to the treatment
and disposition of human skeletal remains and burial material;
(e) assume responsibility for final treatment and disposition of human
skeletal remains and burial material if the field review recommendation is
not accepted by the board'a representatives and the landowner;
(f) establish a nonrefundable application fee, not to exceed $50, for a
permit for scientific analysis of human skeletal remains or burial material
from burial sites as provided by 22.3.806;
(g) issue permits authorizing scientific analysis;
(h) accept grants or real or in -kind donations to carry out the purposes of
this part;
(i) adopt rules necessary to administer and enforce the provisions of this
part; and
0) perform any other duties necessary to implement the provisions of this
parL
T M �.
f • - • ► . y. UITIES 0
(4) The board is allocated to the department of commerce for administra-
tive purposes only as prescribed in 2-15-121.
(5) Members of the board shall serve without pay but are entitled to
reimbursement for travel, meals, and lodging pursuant to 2-18-501 through
2-18-503.
Ktatory: En. Sec. 4, Ch. 7A L 1991.
22-3-M. Discovery ® reporting requirements -- field review. (1)
A person who by archaeological excavation or by agricultural, mining, con-
struction, or other ground -disturbing activity discovers human skeletal
remains, a burial site, or burial material shall immediately notify the county
coroner. Failure to notify the county coroner subjects a person to the penalty
. provided ;in 22-3.8t38i
(2Y Upon discovery of human skeletal remains, a burial site, or burial
material, excavation or further disturbance must cease until the coroner has
determined whether the remains are subject to the provisions of Title 46,
chapter 4, or any other related provisions of law concerning the investigation
of the circumstances, manner, and cause of death or whether a forensic
examination of the human skeletal remains, burial site, or burial material is
necessary. The coroner shall make his determination within 2 working days
from the time the person responsible for the excavation notifies him of the
discovery or recognition of the remains. If the coroner cannot make the
determination within 2 working days, he shall notify a member of the board
of the reason for and the approximate length of the delay. The coroner shall
take all reasonable steps to make his determination without removing or
causing further disturbance of the remains.
(3) If a forensic examination, action under Title 46, chapter 4, or action
under any other related provisions of law concerning the investigation of the
circumstances, manner, and cause of death is necessary and yields evidence
of criminal activity, the evidence may be seized by the coroner or law
enforcement agency with jurisdiction for use in a criminal proceeding as
provided by law.
(4) If the coroner determines that the remains are not subject to the
provisions of Title 46, chapter 4, or any other provisions of law concerning the
investigation of the circumstances, manner, and cause of death and that a
forensic examination is not necessary, he shall telephone the state historic
preservation officer within 24 hours. Within 24 hours of notification, the sta w
historic preservation officer shall contact either the landowner and the board
or the landowner and the board member representing the nearest reservation
and notify them of the discovery of human skeletal remains, a burial site, or
burial material.
(5) If the state historic preservation officer cannot be contacted, the
coroner shall notify a member of the board or the law enforcement agency of
the nearest reservation within 24 hours. The board or the agency shall
immediately notify the landowner and the board member representing that
reservation.
(6) Within 36 hours after the board receives notification of a discovery of
human skeletal remains, a burial site, or burial material, the board shall
designate representatives to conduct, with the permission of the landowner,
740
741 ANTIQUITIES 22-3-806
inistra-
an initial field review. If the field review cannot be completed within the next
36 hours, the board's representatives shall negotiate with the landowner or
itled to
his representative for a reasonable time extension to eompletc: thu ruview. The
hrough
field review must include:
(a) a determination of whether the site can be preserved;
(b) negotiation with the landowner concerning onsite reburial or disinter-
iew. (1)
ment and reburial; and
ig, con-
(c) a recommendation, including a timeframe, concerning final treatment
Skeletal
or disposition of the human skeletal remains or burial material.
county
(7) If the board's representatives fail to make a recommendation or if the:
penalty
landowner and the board cannot agree and mediation fails to provide, within
40 days after notification to the board, a resolution acceptable to the land•
r burial
owner and the board, the human skeletal remains and burial materials must
sner has
be removed and control is vested in the board. The board shall give control of
Ntle 46,
the remains or materials in the following priority to:
tigation
(a) the descendants, if identifiable;
forensic
(b) the tribe or other cultural group that has the closest cultural affiliation
aerial is
with the human skeletal remains or burial materials;
ing days
(e) the tribe or other cultural grouts recognized as having aboriginally or
n of the
historically occupied the area where the remains or materials were discovered
:ske the
if, upon notification by the board, the tribe or cultural group states a claim
ie board
for the remains or materials; or
ier shall
(d) if unclaimed by any tribe or cultural group, the board, which shall
oving or
determine the appropriate disposition and oversee the reinterment of the
remains and materials.
3r action
(8) For purposes of this section, "cultural group" means a present-day
on of the
group or organization that has a relationship of shared group identity which
evidence
can be reasonably traced historically or prehistorically to an identifiable
- or law
earlier group or organization.
eding as
History: En. Sao. 5, Ch. 748, L. 1991.
Cross -References
::t to the
Investigative procedures. Title 46, ch. 4.
.Wing the
22-34". Scientific analysis -- permit required. (1) Although onsite
id that a
reburial is preferred, the board may, upon petition by a person seeking
3 historic
permission to perform scientific analysis, grant a permit for the scientific
the state
removal and analysis of human skeletal remains and burial material upon
-he board
proof and determination by the board that the analysis is scientifically
nervation
justifiable. A petition for a permit must include:
at site, or
(a) payment of the nonrefundable application fee provided for in 2'-3-804;
and
.cted, the
(b) a brief narrative describing the methodology to be used, the timeirame
agency of
needed to complete the scientific study, and any other information specifically
ncy shall
requested by the board relating to the proposed study.
sting that
(2) The methodology proposed must be reviewed by the state historic
preservation officer or his designated representative and the physical
scovery of
anthropologist on the board, and a recommendation must be made to the full
>ard shall
board. Once approved by the board, any change in methodology or in the
Lndowner,
timeframe must be approved by the board before the original timeframe
81 i ' 'ANTIQUITIES
expires. The tirneframe for scientific study may not exceed 12 months from
the date of issuance of the permit.
(3) A permit for scientific analysis issued by the board is subject to terms,
conditions, and procedures prescribed by the board and must include the
condition that a permittee shall pay all costs of excavation, study, and
disposition.
(4) The board shall either issue or deny a permit within. 30 working days
from the date of the permit petition. If the board denies a permit upon a finding
that scientific analysis is not justifiable, the board shall provide the applicant
with a written statement outlining the grounds for its finding. The applicant
may appeal the decision of the board under the provisions of Title 2, chapter
4, part 6, of the Montana Administrative Procedure Act.
(5) The board may suspend or revoke a permit pursuant to the Montana -
Administrative Procedure Act upon a finding that the perraittee has violated
any provision of this part or any term, condition, or procedure of a permit
issued by the board.
(6) The provisions of this section do not apply to a forensic examination
by the county coroner, action under Title 46, chapter 4, or action under any
other related provisions of law concerning the investigation of the circumstan-
ces, manner, and cause of death.
History; En. Sea. 6. Ch. 748,1-1991.
Cross -References
Contested cases, Tide 2, ch. 4, part 6.
22-3-807. Nondisclosure of records. (1) The state historic preservation
officer, in consultation with the board, shall maintain burial site records that
are separate and distinct from those in the cultural resource registry and that
are necessary to administer this part.
(2) Burial site records are confidential and available only to criminal
justice agencies or to federal, state, and tribal personnel or their appointed
representatives legally charged with administering laws protecting cultural
resources.
(3) Statistical information compiled from burial site records must be
made available to the general public. Any information concerning burial site
records that is released to a criminal justice agency is confidential criminal
justice information, as defined in 44.5.103, and is subject to dissemination
pursuant to 44.5-303.
History: En. Sec. 7, Ch. 749,1.1991.
Cross -References
Montana Criminal Justice Information
Act of 1979, Title 44, ch. S.
22-3-808. Prohibited acts — penalties. (1) After July 1, 1991, unless
authorized under this part or by the descendants, tribe, cultural group, or
other person, group, or entity to which the board gives control of the human
skeletal remains or burial materials under 22-3-805, a person may not:
(a) purposely or knowingly pilfer, disturb, destroy, or permit pilferage,
disturbance, or destruction of a marked, unmarked, unrecorded, registered,
or unregistered grave or burial ground or of burial material;
EM
743 ANTIQUITIES 22.3-811
rms,
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and
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cant
cant
.pter
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ated
rmit
ition
any
:tan-
ttion
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:final
3tion
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iman
rage,
ered,
(b) for commercial use, knowingly possess, buy, sell, transport, barter, or
display human skeletal remains or burial material acquired in violation of
this purt; or
(c) purposely or knowingly disclose information knowing that it is highly
probable that the disclosure will lead to pilferage, disturbance, or destruction
of a burial site.
(2) A person convicted under the provisions of subsection (1)(a) may be
fined an amount not to exceed $1,000, be imprisoned in the county jail for not
more than 6 months, or both.. A person convicted of a subsequent violation of
subsection (1)(a) may be fined an amount not to exceed $20,000, be imprisoned
for not more than 5 years, or both.
(3) A person convicted under the provisions of subsection (1)(b) may be
fined an amount not to exceed $50,000, be imprisoned for not more than 20
years, or both.
(4) A person convicted under the provisions of subsection (1xc) may be
fined an amount not to exceed $500, be imprisoned for not more than 6 months,
or both. A person convicted of a subsequent violation of subsection (I)(c) may
be fined an amount not to exceed $10,000, be imprisoned for not more than 5
years, or both.
(5) A person who knowingly fails to give notice as required by 22-3-805(1)
may be fined an amount not less than $100 or more than M.
(6) A person who violates a provision of this section or any term or
condition of a permit issued under 22-3-806 is subject to a civil penalty not to
exceed $2,000 for the first violation and not to exceed $10,000 for a subsequent
violation.
History: En. Sec. 8, Ch. 748, L 1991.
22r3-809. Civil penalty and damages actions. (1) This part does not
preclude civil actions for damages.
(2) The board may bring an action under 22-3-808 for a civil penalty.
Historyt En. Sec. 9, Ch. 748, L 1991.
22-3-810. Closure of board meetings. The board may close part of a
meeting of the board to the public if the board finds that information that may
be acquired at that part of the meeting may allow a person to identify a burial
site, human skeletal remains, or burial material and pilfer, disturb, or destroy
the human skeletal remains, burial site, or burial material.
History: En. See.10, Ch. 748, L 1991.
Cross -References
Right of public to examine documents or to
observe deliberations of public bodies, Art. II,
see. 9, Mont. Cont.
Open meetings, Title 2, ch. 3, part 2.
Criminal penalty for conducting dosed
meeting — official misconduct, 45-7.401.
22-3-811. Disposition of fees, grants, and donations. There is an
account in the state special revenue fund. The board shall deposit any fee,
grant, or donation received under 22-3-804 into the account to be used to pay
expenses for board meetings or expenses incurred in conducting field reviews.
History: En. Sec. 13, Ch. 748, L 1991.
ciofKalispell
Incorporated 1892
Telephone (406) 7S8-7700
Douglas Rauthe
FAX (406) 758-77S8
Mayor
Post Office Box 1997
Zip 59903-1997
Bruce Williams
City Manager
City Council
Members:
Gary W. Nysbul
Wand 1
M E M O
Cliff Collins
Ward 1
TO: Mayor & Council
Barbara Moses
Ward 11
FROM: Bruce Williams
Date Haan
Ward 11
DATE: September 11, 1995
Jim Atkinson
RE.: Attached Proposal
Ward III
Lauren Granmo
Ward III
We have received a request by Don Anderson
to purchase from
the City a small parcel of property located
behind Anderson
Pamela B. Kennedy
Masonry. I have asked Mike Baker to meet
with Mr. Anderson
Ward IV
concerning this request. At some point in the near future, we
M. Duane Larson
will discuss the particulars of the request
with you. As you
Wardle
know, we cannot sell or dispose of public
property without
first offering it through a public bidding
process.
Masonry Contractors
MAIN OFFICE:
16 WOODLAND PARK DRIVE
KALISPELL, MONTANA 59901
(406) 755-3023 FAX (406) 756-8706
August 31, 1995
Mike Baker
Kalispell City Parks
P.O. Drawer 1997
Kalispell, MT 59903
C
BRANCH OFFICE:
E. 6022 BALDWIN - BOX 11976
SPOKANE, WASHINGTON 99211
(509) 534-2652 FAX (509) 534-3603
RE: Proposition to City to purchase small parcel of land along Woodland Park Drive, shown on
accompanying plats and sketches.
Dear Mike,
The parcel of land which I am referring to is shown on the enclosed plats.
it is a pie shaped piece that touches Woodland Park Drive at the tip as shown.
This parcel of land does not appear to have any value to the City, but has some value to us since our
property adjoins this parcel.
The City would benefit from this sale in at least five ways:
1. Eliminate the safety hazard of children digging into the banks.
2. Add a piece of land to the tax rolls which the City does not use.
3. Clean up and level out a piece of steep and unsightly ground.
4. Remove the property liability from the City.
5. Allow development of this property for office and retail space.
Anderson Masonry would benefit from this purchase by:
1. Tieing our two properties together for needed expansion.
2. Clean up, excavate and maintain a piece of land which is steep, unmaintained and
dangerous.
3. Stop the traffic of children on a dangerous hillside.
I have discussed this piece of property with an appraiser to get a fair idea of its market value. The range
of prices quoted on comparison parcels varied from 1.00/sq.ft. (Meridian) to 3.00/sq.ft. (Burlington
Northern Property) depending on the proximity to downtown Kalispell, size, access, City services, etc.
It is my opinion with the research 1 have done, that the land, were it level and had City services, and
because of our distance from downtown, would be worth a price of approximately 1.50/sq.ft.. As you can
see from my sketch, the amount of usable land left after excavating the hill and leaving a 45* slope is
approximately 72,700 sq.ft..
At the 1.50/sq.ft. that would give us $109,050.00, if the lot was usable. To make the land usable at all,
the hill would have to be excavated. By my estimating and discussion with excavating contractors, this
would amount to approximately 30,000 yards of fill to remove. Estimated cost to remove would be
2.50/yd, equaling $75,000.00.
Page 2
Proposition Letter to City
August 29, 1995
Deducting this off:
Fair Price: $109,0%00
Fill Removal: $75,000.00
Value of Parcel: $ 34,050.00
We propose offering the City up to $38,000,00 for the parcel as it sits now.
City Requirements
1. Pay for appraisal 'rf needed.
2. Join with the Anderson's to disband the utility easement.that was originally set up for
a disbanded subdivision.
Anderson's Re uirements
1. Pay for survey.
2. Join with the City on disbanding utility easement.
3. Provide City sewer service to the property.
We presented this in 1989 and would like to bring it to conclusion at this time. We are growing, and need
to tie our properties together. We have also observed kids burrowing into the clay banks and would hate
to have a tragedy in our own back yard.
We plan to submit this proposal in October to the City Council, but would like your consideration and
input before we do so. Would a meeting on September 13, 1995 at 3:00p.m. be possible? We could
meet at our store, Anderson's Masonry Supply Corp., and review the site in question. Please RSVP to
me as soon as possible. Thank you.
yours,
Donald J. Anderson
Vice President
DJA/rs
CC: Bruce Williams (Kalispell City Manager)
Glenn Neier (Kalispell City Attorney)
Mike Baker (Kalispell City Parks)
Letrcii2.prp
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