Re: Private - Steven J. Coker
Subject: Re: Private
From: Steven J. Coker
Date: July 04, 1998

[email protected] wrote:
> Perhaps you can answer this for me. I have worried for years that collectors,
> curious kids, etc., would remove artifacts from our own property which is

 Is there a law similiar to the one above that protects the property owner? "No
> Trespassing" signs do not work.

In my work as an Environmental Engineer with the Army Corps of Engineers I
regularly work with the S.C. State Historic Preservation Office (SHPO) and I'm
confident that I have a good understanding of existing laws and regulations on
this subject.  I've discussed and researched this particular issue before.  Here
is my understanding of the facts.

1. The federal laws protecting historic properties ONLY apply to Federal Lands
and actions of Federal Agencies.  They do not protect historic properties on
private land, except that if a federal action is requested or required which
will impact any historic property on private land, AND the impacted historic
property is determined eligible or potentially eligible for the National
Register of Historic Places, then, and only then, the involved federal agencies
are responsible for taking certain limited steps necessary to avoid or minimize
any adverse impacts to the historic property.  Generally, these steps include
coordination with SHPO and the Advisory Council on Historic Places (ACHP). 
Examples of common federal actions that might involve activities on private
lands include construction of federally funded highways, issuance of federal
permits for bridges, issuance of federal permits for filling or dredging in
aquatic areas (e.g. wetlands, rivers), federal grants, etc.

2. Similar to the federal laws, the State laws in South Carolina protecting
historic properties are largely limited to properties on State owned lands. 
Excepting for cemeteries and underwater archaeological sites, the State laws in
South Carolina DO NOT give protection to historic properties on private land. 
So, a private property owner in South Carolina can legally excavate, destroy, or
do whatever they like to any historic property that exists on their property. 
Regardless of the value, rarity, or importance of the historic property.  There
have been highly publicized cases where owners have bulldozed and destroyed
important historic sites with full knowledge of the existence and importance of
the site.  And they do it with impunity because there is no law to prevent
them.  Sadly, this happens more and more often as development pressures make the
land more valuable for residential or commercial construction.  

But, there is something concerned property owners and others can do to help
protect such unprotected historic sites.  They can convince the owners to place
a protective easement on the property.  There are several good historic
conservancy organizations which can accept and hold such easements.  These
conservancy groups then act as the "watchdogs" for the property and try to
assure that the terms of the easement are met.  The owner can get a tax benefit
for placing the easement on the property, the easement can be crafted in a
variety of ways to allow the owner to retain certain uses they may wish to have
(e.g. hunting, fishing, bird-watching, camping, etc.) provided such uses are
done in a manner compatible with the purposes of the easement.

Lacking a "watchdog" like a conservancy group, the property owners or other
concerned parties just have to rely on the existing property laws and law
enforcement to protect the historic and cultural resources.  But, pot hunters
and scavengers with metal detectors are very resourceful and many of them know
how to find historic sites as well, or better, than many archaeologists.  And,
while a current owner may be conscientious and protective of the property, some
future generation of owners may not and may let the property be "developed"
thereby destroying it's historic character.  But, if a perpetual easement is
properly written and a good conservancy group is chosen to enforce it, then the
property may be saved for future generations to see and experience.

Another approach might be to lobby your State and Federal legislators to extend
protect to historic properties on private lands.

Preserve it now or lose it later,

Steve Coker

Also see:

SC State Historic Preservation Office
Director of Historic Preservation
Mary W. Edmonds
[email protected]

SC State Historic Preservation Office
Grants and Outreach
Susan McGahee
[email protected]

SC State Historic Preservation Office
Survey, Registration & Protection
Steven Skelton
[email protected]

SC State Historic Preservation Office
Historic Architecture Consultant
Dan Elswick
[email protected]

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