SENATE FILE 43

BY  SCHOENJAHN

A BILL FOR

An Act relating to the protection and care of pioneer cemeteries.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

   Section 1.  Section 523I.316, Code 2011, is amended to read as follows:
   523I.316  Protection of cemeteries, pioneer cemeteries, and burial sites.
   1.  Existence of cemetery, pioneer cemetery, or burial site —— notification.  If a governmental subdivision is notified of the existence of a cemetery, a pioneer cemetery, or a marked burial site that is not located in a dedicated cemetery, within its jurisdiction and the cemetery, pioneer cemetery, or burial site is not otherwise provided for under this chapter, the governmental subdivision shall, as soon as is practicable, notify the owner of the land upon which the cemetery, pioneer cemetery, or burial site is located of the cemetery’s, pioneer cemetery’s, or burial site’s existence and location. The notification shall include an explanation of the provisions of this section. If there is a basis to believe that interment may have occurred more than one hundred fifty years earlier, the governmental subdivision shall also notify the state archaeologist.
   2.  Disturbance of interment spaces —— penalty.  A person who knowingly and without authorization damages, defaces, destroys, or otherwise disturbs an interment space commits criminal mischief in the third degree. Criminal mischief in the third degree is an aggravated misdemeanor.
   3.  Duty to preserve and protect.
   a.  A governmental subdivision having a cemetery, pioneer cemetery, or a burial site that is not located within a dedicated cemetery, within its jurisdiction, for which preservation is not otherwise provided, shall preserve and protect the cemetery, pioneer cemetery, or burial site as necessary to restore or maintain its physical integrity as a cemetery, pioneer cemetery, or burial site. The governmental subdivision may enter into a written agreement to delegate the responsibility for the preservation and protection of the cemetery, pioneer cemetery, or burial site to the owner of the property on which the cemetery, pioneer cemetery, or burial site is located or to a public or private organization interested in historical preservation. The governmental subdivision shall not enter into an agreement with a public or private organization to preserve and protect the cemetery, pioneer cemetery, or burial site unless the property owner has been offered the opportunity to enter into such an agreement and has declined to do so.
   b.  A governmental subdivision is authorized to expend public funds, in any manner authorized by law, in connection with such a cemetery, pioneer cemetery, or burial site.
   c.  If a governmental subdivision proposes to enter into an agreement with a public or private organization pursuant to this subsection to preserve and protect a cemetery, pioneer cemetery, or burial site that is located on property owned by another person within the jurisdiction of the governmental subdivision, the proposed agreement shall be written, and the governmental subdivision shall provide written notice by ordinary mail of the proposed agreement to the property owner at least fourteen days prior to the date of the meeting at which such proposed agreement will be authorized. The notice shall include the location of the cemetery, pioneer cemetery, or burial site and a copy of the proposed agreement, and explain that the property owner is required to permit members of the public or private organization reasonable ingress and egress for the purposes of preserving and protecting the cemetery, pioneer cemetery, or burial site pursuant to the proposed agreement. The notice shall also include the date, time, and place of the meeting and a statement that the property owner has a right to attend the meeting and to comment regarding the proposed agreement.
   d.
  (1)  Subject to chapter 670, a governmental subdivision that enters into an agreement with a public or private organization pursuant to this subsection is liable for any personal injury or property damage that occurs in connection with the preservation or protection of the cemetery, pioneer cemetery, or burial site or access to the cemetery, pioneer cemetery, or burial site by the governmental subdivision or the public or private organization.
   (2)
  For the purposes of this paragraph “d”,“liable” means liability for every civil wrong which results in wrongful death or injury to a person or injury to property or injury to personal or property rights and includes but is not restricted to actions based upon negligence; error or omission; nuisance; breach of duty, whether statutory or other duty; or denial or impairment of any right under any constitutional provision, statute, or rule of law.
   e.  A property owner who is required to permit members of a public or private organization reasonable ingress and egress for the purpose of preserving or protecting a cemetery, pioneer cemetery, or burial site on that owner’s property and who acts in good faith and in a reasonable manner pursuant to this subsection is not liable for any personal injury or property damage that occurs in connection with the preservation or protection of the cemetery, pioneer cemetery, or burial site or access to the cemetery, pioneer cemetery, or burial site.
   f.  For the purposes of this subsection, reasonable ingress and egress to a cemetery, pioneer cemetery, or burial site shall include the following:
   (1)  A member of a public or private organization that has entered into a written agreement with the governmental subdivision who desires to visit such a cemetery, pioneer cemetery, or burial site shall give the property owner at least ten days’ written notice of the intended visit.
   (2)  If the property owner cannot provide reasonable access to the cemetery, pioneer cemetery, or burial site on the desired date, the property owner shall provide reasonable alternative dates when the property owner can provide access to the member.
   (3)  A property owner is not required to make any improvements to that person’s property to satisfy the requirement to provide reasonable access to a cemetery, pioneer cemetery, or burial site pursuant to this subsection.
   4.  Confiscation and return of memorials.  A law enforcement officer having reason to believe that a memorial or memorialization is in the possession of a person without authorization or right to possess the memorial or memorialization may take possession of the memorial or memorialization from that person and turn it over to the officer’s law enforcement agency. If a law enforcement agency determines that a memorial or memorialization the agency has taken possession of rightfully belongs on an interment space, the agency shall return the memorial or memorialization to the interment space, or make arrangements with the person having jurisdiction over the interment space for its return.
   5.  Burial sites located on private property.  If a person notifies a governmental subdivision that a burial site of the person’s relative is located on property owned by another person within the jurisdiction of the governmental subdivision, the governmental subdivision shall notify the property owner of the location of the burial site and that the property owner is required to permit the person reasonable ingress and egress for the purposes of visiting the burial site of the person’s relative.
   6.  Pioneer cemeteries located on private property.If a person notifies a governmental subdivision that the person’s relative is interred in a pioneer cemetery on property owned by another person within the jurisdiction of the governmental subdivision, the governmental subdivision shall notify the property owner of the location of the pioneer cemetery and that the property owner is required to permit the person reasonable ingress and egress for the purposes of visiting the burial site of the person’s relative.
   6.  7.  Discovery of human remains.  Any person discovering human remains shall notify the county or state medical examiner or a city, county, or state law enforcement agency as soon as is reasonably possible unless the person knows or has good reason to believe that such notice has already been given or the discovery occurs in a cemetery. If there is reason to believe that interment may have occurred more than one hundred fifty years earlier, the governmental subdivision notified shall also notify the state archaeologist. A person who does not provide notice required pursuant to this subsection commits a serious misdemeanor.

   7.  8.  Adverse possession.  A cemetery or a pioneer cemetery is exempt from seizure, appropriation, or acquisition of title under any claim of adverse possession, unless it is shown that all remains in the cemetery or pioneer cemetery have been disinterred and removed to another location.
   Sec. 2.  Section 523I.317, Code 2011, is amended to read as follows:
   523I.317  Duty to provide public access.
   A cemetery or pioneer cemetery shall provide or permit public access to the cemetery or pioneer cemetery, at reasonable times and subject to reasonable regulations, so that owners of interment rights and other members of the public have reasonable ingress and egress to the cemetery or pioneer cemetery.
   Sec. 3.  Section 523I.401, Code 2011, is amended to read as follows:
   523I.401  Neglected cemeteries and pioneer cemeteries.
   The commissioner shall create a form that interested persons may use to report neglected cemeteries and pioneer cemeteries to the commissioner. The commissioner shall catalog and review the neglected cemetery and pioneer cemetery reports received on or before December 31, 2007 2011, conduct site visits as warranted to determine the nature or extent of any neglect, and publish a report of findings on or before December 31, 2008 2012.
   Sec. 4.  Section 523I.402, Code 2011, is amended to read as follows:
   523I.402  Removal of remains.
   1.  Upon a showing of good cause, a county cemetery commission may file suit in the district court in that county to have remains interred in a cemetery or pioneer cemetery owned and operated by the commission removed to another cemetery. All persons in interest, known or unknown, other than the plaintiffs, shall be made defendants to the suit. If any parties are unknown, notice may be given by publication. After hearing and a showing of good cause for the removal, the court may order the removal of the remains and the remains shall be properly interred in another cemetery, at the expense of the county. The removal and reinterment of the remains shall be done pursuant to a disinterment permit issued under section 144.34 with due care and decency. In deciding whether to order the removal of interred remains, a court shall consider present or future access to the cemetery or pioneer cemetery, the historical significance of the cemetery or pioneer cemetery, and the wishes of the parties concerned if they are brought to the court’s attention, including the desire of any beneficiaries to reserve their rights to waive a reservation of rights in favor of removal, and shall exercise the court’s sound discretion in granting or refusing the removal of interred remains.
   2.  Any heir at law or descendent of a deceased person interred in a neglected cemetery or pioneer cemetery may file suit in the district court in the county where the cemetery or pioneer cemetery is located to have the deceased person’s remains interred in the cemetery or pioneer cemetery removed to another cemetery. The owner of the land, any beneficiaries of any reservation of rights, and any other persons in interest, known or unknown, other than the plaintiffs shall be made defendants. If any parties are unknown, notice may be given by publication. After hearing and upon a showing of good cause, the court may order removal and the proper interment of the remains in another cemetery, at the expense of the petitioner. The removal and reinterment shall be done with due care and decency.
EXPLANATION
   This bill extends certain protections to pioneer cemeteries that are available to cemeteries. A pioneer cemetery is defined as a cemetery where there were 12 or fewer burials in the preceding 50 years. A pioneer cemetery is specifically excluded from the definition of a cemetery for purposes of cemetery regulation in Code chapter 523I.
   Code section 523I.316 is amended to require a governmental subdivision that is notified of the existence of a pioneer cemetery that is not otherwise provided for under Code chapter 523I to notify the owner of the land upon which the pioneer cemetery is located of its existence and also the state archaeologist if there is a basis to believe that interment may have occurred more than 150 years earlier. A governmental subdivision is also given the duty to preserve and protect a pioneer cemetery or enter into an agreement with the landowner on which the pioneer cemetery is located, or a public or private organization interested in historical preservation, to do so. The governmental subdivision may expend public funds in connection with a pioneer cemetery and is liable, subject to Code chapter 670, for personal injury or property damage that results in connection with the preservation or protection of, or access to, the pioneer cemetery. Reasonable ingress and egress requirements for preservation organizations and relatives of persons interred also apply to pioneer cemeteries.
   Code section 523I.317 is amended to require that pioneer cemeteries must allow public access to the pioneer cemetery at reasonable times.
   Code section 523I.401 is amended to require the commissioner of insurance to create a form that interested persons may use to report neglected cemeteries and pioneer cemeteries to the commissioner and requires the commissioner to catalogue and review any neglected cemetery and pioneer cemetery reports received on or before December 31, 2011, conduct site visits as warranted, and publish a report of findings on or before December 31, 2012. These changes update previous provisions which required the commissioner to catalogue and review neglected cemetery reports received on or before December 31, 2007, and publish a report of findings before December 31, 2008.
   Code section 523I.402 is amended to allow a county cemetery commission or an heir at law or descendent of a deceased person interred in a pioneer cemetery to file suit in district court to have remains interred in a pioneer cemetery removed to another cemetery.