OAR 736-051-0080
Archaeological Permits: Process for Applying for an Archaeological Permit on Public Lands
(1)
A person may not excavate or alter an archaeological site on public lands, make an exploratory excavation on public lands to determine the presence of an archaeological site, or remove from public lands any material of an archaeological, historical, prehistorical or anthropological nature without first obtaining a permit issued by the State Parks and Recreation Department.(2)
A person who is considering a ground-disturbing project on public lands should contact the appropriate Tribe to inquire about the presence of archaeological sites and objects in the project area.(3)
An archaeological permit may be issued to:(a)
A qualified archaeologist in the employ of a person conducting an excavation, examination or gathering of archaeological objects for the benefits of a recognized scientific or educational institution with a view to promoting the knowledge of archaeology or anthropology;(b)
A qualified archaeologist to salvage archaeological objects from unavoidable destruction; or(c)
A qualified archaeologist sponsored by a recognized institution of higher learning, private firm or an Indian tribe as defined in ORS 97.740 (Definitions for ORS 97.740 to 97.760).(4)
A person who desires an archaeological permit pursuant to ORS 390.235 (Permits and conditions for excavation or removal of archaeological or historical material) must submit an application to the Oregon Parks and Recreation Director or his or her designee. The application must be complete and be accompanied by:(a)
A map that clearly shows the location of the proposed work that enables the landowner or land managing agency, SHPO and the appropriate Indian tribe to clearly understand the location of the proposed action;(b)
A resume(s) or vita(s) for the person(s) in direct charge of field work. The resume or vita must demonstrate that the person(s) meets or exceeds the qualifications listed in OAR 736-051-0080 (Archaeological Permits: Process for Applying for an Archaeological Permit on Public Lands)(3);(c)
A research design that explicitly develops the rationale behind the proposed research, giving the theoretical orientation, justification for problem selection, logic and procedures for the research strategy. The design must define the universe of study, establish realistic minimal expectations and a realistic schedule of research and provide justified recovery procedures;(d)
The name, address and phone number of the landowner or land managing agency;(e)
A copy of the notice required under ORS 358.950 (When notice to Indian tribe required)(1), if the excavation is associated with a prehistoric or historic American Indian archaeological site;(f)
A curation facility for archaeological objects uncovered during the project.(5)
Upon receipt of a complete application, the Director or his or her designee shall determine whether public lands, as defined in OAR 736-051-0070 (Archaeological Permits: Definitions)(16), are involved.(6)
In consultation with the Commission on Indian Services, the SHPO shall identify the appropriate tribe to be mailed copies of the complete archaeological permit application.(7)
As soon as practicable, but generally not to exceed two working days, the SHPO shall mail copies of the complete application to the appropriate Indian tribe, if any, the land managing agency, Commission on Indian Services, Oregon State Museum of Anthropology, and the applicable local government planning department.(8)
Intentionally left blank —Ed.(a)
Before issuing a permit, the Director or his or her designee shall contact the appropriate Indian tribe, if any, the landowner or head of the land managing agency, the Director of the Oregon State Museum of Anthropology at the University of Oregon State Museum of Anthropology at the University of Oregon, the appropriate local planning commission, and the Commission on Indian Services;(b)
Notification shall consist of mailing the complete application and its attachments to appropriate state and local entities and the appropriate Indian tribe. The notification shall solicit comments, recommendations for conditions, or objections to the application. Notification letters shall include a highlighted confidentiality statement. Responses to the solicitation must be received within 30 calendar days of the date of the letter. SHPO shall send copies of all responses to the applicant;(c)
If the archaeological site in question is associated with a prehistoric or historic native Indian culture, the applicant shall consult with the appropriate Indian tribe during the 30 day period. At a minimum, consultation shall consist of meeting(s) satisfactory to the tribal governing body and/or its designee, and shall include discussion of the proposed work, archaeological permit terms or conditions, tribal monitoring of the archaeological and project work, contingency plans for discovery of remains and artifacts during both archaeological work and project development, and curation of artifacts;(d)
If an entity listed in subsection (a) of this section makes any objection or requests a condition to the application, the applicant shall contact the entity and attempt to resolve the issue. If the objection or request for condition is resolved by the applicant and the entity, they shall notify the SHPO in writing of the resolution. If the applicant and the entity cannot resolve the objection or request for condition within the 30 calendar days allowed for comment on the permit application, the Director or his or her designee shall determine what effect, if any, the objection or proposed condition shall have on the permit application.(9)
Intentionally left blank —Ed.(a)
Notwithstanding the provisions of section (8) of this rule, any person or entity who discovered an archaeologicals or historic site or burial during construction may request an expedited consultation process. The request may be granted whenever the Director or his or her designee, in consultation with the parties listed in subsection (8)(a) of this rule, determines that the 30 day consultation period provided in subsection (8)(b) of this rule will result in extreme economic hardship to the person or entity making the request, or an undue risk to public health, life or safety, or an undue threat to the site or burial. Examples of situations creating undue risk to public health, life or safety include hazardous material spills, breach of regional flood control facilities, and pipeline failures.(b)
If the Director or his or her designee determines that an expedited consultation process is warranted, the following procedures apply:(A)
The applicant shall contact the Director or his or her designee by telephone and/or facsimile to provide the information described in sections (4) and (7) of this rule;(B)
During the following 48 hours (excluding Saturday, Sunday, and any legal or tribal holidays), the Director or his or her designee shall consult by telephone and/or facsimile with the persons or entities described in section (8) of this rule. If the head of the land managing agency or the tribal governing body of the appropriate Indian tribe objects in writing to an expedited review, the Director or his or her designee will not proceed with the expedited review;(C)
The applicant may proceed with approval from the Director or his or her designee, to be followed by written notice as provided in section (12) of this rule.(c)
For purposes of this section, “extreme economic hardship” means a quantifiable and verifiable expenditure or fiscal loss that is unreasonable for the requestor to bear under the circumstances, including but not limited to the following:(A)
The importance of the project or non-archaeological use that would be delayed during the consultation period;(B)
The additional costs that would be incurred during the consultation period;(C)
The total cost of the project;(D)
The degree to which expedited consultation could achieve the same protection of the site as consultation over the standard 30 day permit application review period;(E)
Whether the requestor reasonably could have avoided the additional costs by anticipating the need for a permit and consultation at an earlier time.(10)
After considering the application, maps, research design, vita and all comments, recommendations for conditions, or objections received by entities with approval authority during consultation, the Director or his or her designee may issue the permit without conditions, issue the permit with conditions or deny the permit. The permit does not relieve the applicant of compliance with other federal or state requirements, including, but not limited to, ORS 97.740 (Definitions for ORS 97.740 to 97.760) to 97.760 (Civil action by Indian tribe or member), 358.905 (Definitions for ORS 358.905 to 358.961) to 358.955 (Civil enforcement), and 390.235 (Permits and conditions for excavation or removal of archaeological or historical material) to 390.240 (Mediation and arbitration of disputes).(11)
For purposes of this rule, no permit shall be effective without the approval of the state agency or local governing body charged with management of the public land on which the excavation is to be made, and without the approval of the appropriate Indian tribe.(12)
The applicant and all parties defined in ORS 390.235 (Permits and conditions for excavation or removal of archaeological or historical material)(1)(f) shall be notified of the Director’s decision by first class mail.(13)
Disputes among or between applicants and entities with approval authority shall be resolved pursuant to OAR 736-051-0000 (Dispute Resolution Process) through 736-051-0050 (Arbitration).(14)
The permit issued by the Department shall be reviewed and may be suspended or revoked if human remains, funerary objects or sacred objects are encountered during an excavation.
Source:
Rule 736-051-0080 — Archaeological Permits: Process for Applying for an Archaeological Permit on Public Lands, https://secure.sos.state.or.us/oard/view.action?ruleNumber=736-051-0080.