Discoveries, Human Remains, and Monitoring

Stop work in the vicinity immediately and notify the county coroner. Health and Safety Code 7050.5(b) requires that all excavation halt in the vicinity of the discovery pending the coroner’s determination, and the coroner has two working days from notification to determine whether the remains fall under their authority.

If the coroner determines the remains are not under their authority and has reason to believe they are Native American, the coroner must contact the Native American Heritage Commission by telephone within 24 hours (Health and Safety Code 7050.5(c)).

Do not resume work, do not move the remains, and do not photograph or discuss the discovery publicly. Knowingly disturbing or removing human remains outside a dedicated cemetery without authority of law is a misdemeanor under Health and Safety Code 7050.5(a).

On notification from the coroner, the Native American Heritage Commission immediately notifies the person or people it believes to be most likely descended from the deceased Native American (Public Resources Code 5097.98(a)). That person or group is the Most Likely Descendant, and they have 48 hours from being granted access to the site to complete their inspection and make recommendations for treatment.

The landowner must ensure the immediate vicinity is not disturbed by further development until they have discussed and conferred with the Most Likely Descendant about those recommendations (Public Resources Code 5097.98(b)). The landowner has to discuss all reasonable options and consider the descendant’s preferences, which can include non-destructive removal and analysis, preservation in place, relinquishment to the descendants, or other culturally appropriate treatment.

One error to watch for. The 24 hours belongs to the coroner’s obligation to phone the Commission, and the 48 hours belongs to the Most Likely Descendant’s inspection window. The Commission’s own duty to identify the descendant is “immediately,” with no fixed deadline.

It depends on what the site is and what the approval says. Monitoring is a mitigation measure, not a standing legal requirement, so it comes from the conditions of approval, the mitigation monitoring and reporting program, a Programmatic Agreement, or a negotiated discovery plan.

Where it is usually warranted: ground disturbance in an area with a recorded site nearby, sensitive geomorphology such as buried alluvial deposits with potential to contain intact deposits, a project where survey could not cover the full footprint because of pavement or structures, and any project where a tribe has requested it during consultation.

Where it is often over-prescribed: full-time monitoring of an entire linear alignment when the sensitivity is concentrated in identifiable segments. A sensitivity-tiered monitoring plan usually costs less and defends better than blanket coverage, and it is worth asking for.

Frequently, and on some projects it is not optional. For a project taking the AB 130 infill exemption, Public Resources Code 21080.66(b)(4)(B)(i) requires tribal monitoring during all ground-disturbing activities upon request by a tribe, with a monitor the tribe designates and compensation at a reasonable rate aligned with customary rates for cultural resource monitoring. The local government imposes it as a binding condition of approval.

Outside that exemption, tribal monitoring is typically a measure that comes out of AB 52 or Section 106 consultation. After *Koi Nation*, an agency that rejects a tribal request for monitoring during ground disturbance without documenting its reasons has created a defect in the record, so requests for monitoring are now harder to decline than they were.

Budget for it as a line item. On a project with meaningful ground disturbance and an engaged tribe, it is a likely cost rather than a contingency.

They apply to different parties and different situations. Federal NAGPRA, at 25 U.S.C. 3001 and following with regulations at 43 CFR Part 10, governs discoveries and excavations on federal and tribal lands, and repatriation by museums and federal agencies that receive federal funds. The regulations were substantially revised effective January 12, 2024.

CalNAGPRA, at Health and Safety Code 8010 and following, applies to California state agencies and publicly funded museums and agencies. It was created by AB 978 in 2001 and substantially amended by AB 275 in 2020, which expanded the Native American Heritage Commission’s role. Describing AB 275 as creating CalNAGPRA is a common error; it amended a statute that already existed.

The 2024 federal revisions changed practice materially. The duty of care at 43 CFR 10.1(d) requires consultation on custody, storage, and treatment, and free, prior, and informed consent before allowing research on, exhibition of, or access to human remains or cultural items. That is what closed museum galleries and halted collections access across the country in 2024.

For work on federal or tribal lands, 43 CFR 10.4(b) requires a plan of action before any planned activity likely to result in a discovery or excavation of human remains or cultural items, and also after an unforeseen discovery. Tribes and Native Hawaiian organizations managing tribal lands are exempt from the requirement.

It has to include a description of the activity and location, a list of all consulting parties, a record of consultation documenting each party’s position, the parties’ preferences on stabilizing in place versus relocating, the duty of care standards to be applied, and a timeline and method for notification, evaluation, and disposition. The federal agency must approve and sign it and provide copies to all consulting parties.

The deadlines after an inadvertent discovery on federal or tribal land are short. Immediate telephone or in-person report, written documentation within 24 hours, an immediate stop to any activity that could threaten the discovery, a response from the appropriate official within three days, and an approved plan of action within 30 days (43 CFR 10.5).