Whitacre v. State

• Decision Date: 30 August 1993
• Docket Number: No. 15A05-9204-CV-128,15A05-9204-CV-128
• Citation: 619 N.E.2d 605
• Parties: Robert W. WHITACRE, Appellant-Plaintiff, v. STATE of Indiana and the Indiana Department of Natural Resources, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 605

619 N.E.2d 605

Robert W. WHITACRE, Appellant-Plaintiff, v. STATE of Indiana and the Indiana Department of Natural Resources, Appellees-Defendants.

No. 15A05-9204-CV-128.

Court of Appeals of Indiana Fifth District.

Aug. 30, 1993.

Douglas R. Denmure, Aurora, for appellant-plaintiff.

Linley E. Pearson, Atty. Gen., Mary Ann Habeeb, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellees-defendants.

BARTEAU, Judge.

Robert W. Whitacre appeals the trial court's judgment in favor of the Indiana Department of Natural Resources (IDNR) on Whitacre's petition for declaratory judgment. The sole issue on appeal is whether Indiana Code 14-3-3.4, the Indiana Historic Preservation and Archeology Act (the "Act"), is applicable to privately owned property. We conclude that it is and affirm the trial court.

FACTS

The facts are straightforward. Whitacre and his wife are amateur archeologists. In 1982, they discovered a Hopewell Indian site with artifacts dating to circa 150 A.D. on a 40-acre farm in Dearborn County, Indiana. With permission from the property owner, they began excavating areas of the site and removing artifacts. In 1987, the Whitacres purchased the farm and continued excavating and conducting investigations. In July, 1989, after hearing that a new law had been passed, Whitacre inquired of an archeologist at IDNR about the necessity of a permit for conducting investigations on his own property. Whitacre was informed that he would need a permit. After investigating the law on his own, Whitacre determined that he did not need a permit and filed this declaratory judgment action.

The trial court concluded that Ind.Code 14-3-3.4 was applicable to private property and not just property owned or leased by the State of Indiana.

DISCUSSION

The thrust of this appeal is whether a person needs to have an archeological plan approved by the Indiana Department of Natural Resources before that person may disturb private property for the purpose of discovering artifacts or burial objects.

The Historic Preservation and Archeology Act, I.C. 14-3-3.4, established the division of historic preservation and archeology within the IDNR to administer and develop the programs and policies of the Act. I.C. 14-3-3.4-2. As gleaned from the Act, the policies to be furthered by the Division include encouraging the continuous maintenance and integrity of historic sites and structures and coordinating the activities of local historical associations, commissions and private individuals and organizations interested in the historic culture of Indiana. It has been stated that protecting our national and state heritage through the preservation of archeological sites is included in the broad spectrum of legitimate interests of government. Indiana Dept. of Natural Resources v. Indiana Coal Council, Inc. (1989), Ind., 542 N.E.2d 1000, 1005. "The information in these sites expands our knowledge of human history and prehistory and thus enriches us as a state, nation and as human beings." Id.

When construing a statute, this court is guided by several rules of statutory construction. First, it must be noted that when a statute is clear and unambiguous on its face, the court need not, and indeed may not, interpret the statute. Economy Oil Corp. v. Indiana Dept. of State Revenue (1974), 162 Ind.App. 658, 321 N.E.2d 215, 218. When a statute is ambiguous, the court must ascertain the intent of the legislature and interpret the statute to effectuate that intent. Id. When so doing, we read the statutes of an act as a whole and attempt to give effect to all provisions. Id. A statutory amendment changing a prior statute indicates a legislative intention that the meaning of the prior statute has been changed. Wright v. Fowler (1984), Ind.App., 459 N.E.2d 386. Another consideration in construing a statute is to give effect to the purpose of the statute. State v. Adams (1992), Ind.App., 583 N.E.2d 799, trans. denied.

With these guidelines in mind, we conclude that private property is included within the scope of I.C. 14-3-3.4 as amended. Unless the legislature intended to give the state the power to oversee and regulate the treatment of historical and archeological findings on private property, section 15 of the amended act is virtually meaningless, as a review of the old and new statutes shows. Prior to 1989, I.C. 14-3-3.4 restricted activities that affected historic sites or structures only within the boundaries of property owned or leased by the state. Indiana Code 14-3-3.4-7 provided:

A person who knowingly, without a permit, conducts a field investigation or alters historic property within the boundaries of property owned or leased by the state commits a Class B misdemeanor.

Thus, prior to 1989, Whitacre was not required to have an archeological plan approved by the state in order to conduct archeological investigations and excavations on his own property.

In 1989, the legislature amended I.C. 14-3-3.4. Specifically, I.C. 14-3-3.4-7 was amended to provide:

Except as provided in sections 14 through 16 [I.C. 14-3-3.4-14--14-3-3.4-16] of this chapter, a person who knowingly, without a permit, conducts a field investigation or alters historic property within the boundaries of property owned or leased by the state commits a Class A misdemeanor.

Sections 14 through 16 are new sections that provide for (1) the adoption of rules establishing standards for plans, I.C. 14-3-3.4-14, (2) the necessity of a plan, I.C. 14-3-3.4-15, and (3) steps to take when buried human remains are disturbed, I.C. 14-3-3.4-16. Of particular relevance to this appeal is section 15, which provides:

(a) A person who disturbs the ground for the purpose of discovering artifacts or burial objects must do so in accordance with a plan approved by the department under section 14 [I.C. 14-3-3.4-14] of this chapter.

(b) A person who recklessly, knowingly, or intentionally violates this section commits a Class A misdemeanor.

I.C. 14-3-3.4-15. "Plan" is defined as "an archeological plan for the systematic recovery, analysis, and disposition by scientific methods of material evidence and information about the life and culture in past ages." I.C. 14-3-3.4-1.

Nothing in chapter 3.4 explicitly states that the chapter applies only to property owned or leased by the state or that it applies to private property. However, section 13 does provide that the requirement of a plan when disturbing ground does not apply to (1) surface coal mining regulated under I.C. 13-4.1, (2) cemeteries and human remains subject to I.C. 23-14, (3) disturbing the earth for an agricultural purpose, and (4) collecting any object (other than human remains) that is visible on the surface of the ground. These activities are typically conducted on private property, not state owned or leased property; thus, section 13 is superfluous if the chapter applies only to state owned or leased property.

Further, prior to the amendments, I.C. 14-3-3.4-7 prohibited conducting field investigations or altering historic property within the bounds of property owned or...