West Virginia Annotations

Expand All | Collapse All

  1. Protection of Burials

    1. Acts Prohibited by Law and Subject to Criminal Sanctions

      1. What is the criminal liability for unlawfully excavating human remains or archaeological resources?

        Protection of human skeletal remains and grave artifacts; penalties. W. Va. Code § 29-1-8A

        It is unlawful to excavate without a permit human skeletal remains, grave artifacts, or archaeological resources from unmarked graves or archaeological sites. This prohibition does not apply to two groups of people, who do not need to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        A person who intentionally excavates a burial ground or archaeological site either without a permit or in violation of a permit’s terms and conditions is guilty of a misdemeanor. This crime is punishable by a prison sentence in county jail for between ten days and six months, or a fine of between $100 and $500, or both. However, if a person intentionally excavates human skeletal remains either without a permit or in violation of a permit’s terms and conditions, then that person is guilty of the felony of disinterment or displacement of a dead human body (W. Va. Code § 61-8-14). This crime is punishable by a prison sentence in state penitentiary for between two and five years. Furthermore, each instance of excavation constitutes its own separate offense. Finally, any person who knows that another person is illegally excavating a burial ground or archaeological site and intentionally fails to alert law enforcement is guilty of a misdemeanor punishable by a fine of up to $100 and a prison sentence in county jail of up to 10 days.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Protection of historic and prehistoric sites; penalties. W. Va. Code § 29-1-8B

        It is unlawful for a person without a permit to excavate historic and prehistoric sites that are identified by the historic preservation section either on state lands or on private lands where the state has acquired investigation rights by lease or contract. A person who violates this section is guilty of a misdemeanor that is punishable by a fine of up to $500, a prison sentence in the county jail of up to six months, or both.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Disinterment or displacement of dead body or part thereof. W. Va. Code § 61-8-14

        It is unlawful for a person to excavate or disinter a dead human body that was placed in a temporary or permanent burial place. A person who violates this section is guilty of a felony, punishable by a prison sentence in the state penitentiary between two and five years.

        History: Section enacted in 1882; current through 2009 Legislative Session.

      2. What is the criminal liability for unlawfully selling or purchasing human remains and funerary objects?

        Protection of human skeletal remains, grave artifacts and grave markers; penalties. W. Va. Code § 29-1-8A

        It is unlawful to sell or offer to sell human skeletal remains or grave artifacts obtained in violation of this section. A person who violates this section is guilty of a misdemeanor, punishable by a fine between $1,000 and $5,000, and a prison sentence in a county jail between six months and one year.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      3. What is the criminal liability for unlawfully taking or possessing human remains and funerary objects?

        Protection of human skeletal remains, grave artifacts and grave markers; penalties. W. Va. Code § 29-1-8A

        It is unlawful to remove or possess without a permit human skeletal remains or grave artifacts, from unmarked graves or burial sites. This prohibition does not apply to two groups of people, who do not need to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        A person who intentionally removes grave artifacts either without a permit or in violation of a permit’s terms and conditions is guilty of a misdemeanor. This crime is punishable by a prison sentence in county jail for between ten days and six months, or a fine of between $100 and $500, or both. However, if a person intentionally removes human skeletal remains either without a permit or in violation of a permit’s terms and conditions, then that person is guilty of the felony of disinterment or displacement of a dead human body (W. Va. Code § 61-8-14). This crime is punishable by a prison sentence in state penitentiary for between two and five years. Furthermore, each item removed constitutes its own separate offense. Finally, any person who knows that another person is illegally removing human remains or grave artifacts and intentionally fails to alert law enforcement is guilty of a misdemeanor punishable by a fine of up to $100 and a prison sentence in county jail of up to 10 days.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Disinterment or displacement of dead body or part thereof. W. Va. Code § 61-8-14

        It is unlawful for a person to remove or take a dead human body that was placed in a temporary or permanent burial place. A person who violates this section is guilty of a felony, punishable by a prison sentence in the state penitentiary between two and five years.

        History: Section enacted in 1882; current through 2009 Legislative Session.

      4. What is the criminal liability for unlawfully disturbing human remains and funerary objects?

        Protection of human skeletal remains, grave artifacts and grave markers; penalties. W. Va. Code § 29-1-8A

        It is unlawful to disturb without a permit human skeletal remains or grave artifacts, from unmarked graves or burial sites. This prohibition does not apply to two groups of people, who do not need to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        A person who intentionally disturbs grave artifacts either without a permit or in violation of a permit’s terms and conditions is guilty of a misdemeanor. This crime is punishable by a prison sentence in county jail for between ten days and six months, or a fine of between $100 and $500, or both. However, if a person intentionally disturbs human skeletal remains either without a permit or in violation of a permit’s terms and conditions, then that person is guilty of the felony of disinterment or displacement of a dead human body (W. Va. Code § 61-8-14). This crime is punishable by a prison sentence in state penitentiary for between two and five years. Furthermore, each item removed constitutes its own separate offense. Finally, any person who knows that another person is illegally disturbing human remains or grave artifacts and intentionally fails to alert law enforcement is guilty of a misdemeanor punishable by a fine of up to $100 and a prison sentence in county jail of up to 10 days.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Disinterment or displacement of dead body or part thereof. W. Va. Code § 61-8-14

        It is unlawful for a person to disturb a dead human body that was placed in a temporary or permanent burial place. A person who violates this section is guilty of a felony, punishable by a prison sentence in the state penitentiary between two and five years.

        History: Section enacted in 1882; current through 2009 Legislative Session.

      5. What is the criminal liability for defacing or destroying historical or archaeological sites?

        Protection of human skeletal remains, grave artifacts and grave markers; permits for excavation and removal; penalties. W. Va. Code § 29-1-8A

        It is unlawful to deface or destroy without a permit prehistoric, historic, or archaeological sites. This prohibition does not apply to two groups of people, who do not need to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        A person who intentionally defaces or destroys such a site without a permit or in violation of a permit’s terms and conditions is guilty of a misdemeanor. This crime is punishable by a prison sentence in county jail for between ten days and six months, or a fine of between $100 and $500, or both. Furthermore, defacement or destruction of each site constitutes its own separate offense. Finally, any person who knows that another person is illegally defacing or destroying a historical or archaeological site and intentionally fails to alert law enforcement is guilty of a misdemeanor punishable by a fine of up to $100 and a prison sentence in county jail of up to 10 days.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Protection of historic and prehistoric sites; penalties. W. Va. Code § 29-1-8B

        It is unlawful for a person without a permit to deface or destroy historic sites that are identified by the historic preservation section either on state lands or on private lands where the state has acquired investigation rights by lease or contract. A person who violates this section is guilty of a misdemeanor, punishable by a fine of up to $500, a prison sentence in the county jail of up to six months, or both.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      6. What is the criminal liability for unlawfully reproducing historic or archeological artifacts?

        We are unable to locate information relevant to this question at this time.

      7. What is the criminal liability for unlawfully destroying tombs, monuments, or gravestones?

        Protection of grave markers; penalties. W. Va. Code § 29-1-8A

        It is unlawful to deface or destroy grave markers without a permit. This prohibition does not apply to two groups of people, who do not need to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        A person who intentionally defaces or destroys a grave marker without a permit or in violation of a permit’s terms and conditions is guilty of a misdemeanor. This crime is punishable by a prison sentence in county jail for between ten days and six months, or a fine of between $100 and $500, or both. Furthermore, defacement or destruction of each site constitutes its own separate offense. Finally, any person who knows that another person is illegally defacing or destroying a grave marker and intentionally fails to alert law enforcement is guilty of a misdemeanor punishable by a fine of up to $100 and a prison sentence in county jail of up to 10 days.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Damage to cemetery or graveyard; penalties. W. Va. Code § 61-8-14

        It is unlawful to intentionally desecrate a human burial site within a cemetery, graveyard, or mausoleum. A person who violates this section is guilty of a misdemeanor, punishable by a fine of up to $2,000, a prison sentence of up to one year, or both.

        History: Section enacted in 1882; current through 2009 Legislative Session.

      8. What is the criminal liability for unlawfully taking or possessing monuments or gravestones?

        Protection of grave markers; penalties. W. Va. Code § 29-1-8A

        It is unlawful to remove grave markers without a permit. This prohibition does not apply to two groups of people, who do not need to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        A person who intentionally removes a grave marker without a permit or in violation of a permit’s terms and conditions is guilty of a misdemeanor. This crime is punishable by a prison sentence in county jail for between ten days and six months, or a fine of between $100 and $500, or both. Furthermore, defacement or destruction of each site constitutes its own separate offense. Finally, any person who knows that another person is illegally removing a grave marker and intentionally fails to alert law enforcement is guilty of a misdemeanor punishable by a fine of up to $100 and a prison sentence in county jail of up to 10 days.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      9. What is the criminal liability for destroying or damaging petroglyphs and cave surfaces?

        Vandalism; penalties. W. Va. Code § 20-7A-2

        It is unlawful for any person, without prior written permission of the owner, to willfully destroy or damage the surfaces of any cave . A person who violates this section is guilty of a misdemeanor, punishable by a fine between $150 and $500, and a prison sentence in a county jail for between ten days and six months.

        History: Section enacted in 1977; current through 2009 Legislative Session.

        Archaeology; permits for excavation; how obtained; prohibitions; penalties. W. Va. Code § 20-7A-5

        It is unlawful to destroy or deface historic or prehistoric ruins, inscriptions, or petroglyphs within a cave without a permit. A person who violates this section is guilty of a misdemeanor, punishable by a fine between $100 and $500, and a prison sentence in a county jail for between ten days and six months.

        A person can obtain a permit from the Director of Natural Resources. The permit would be good for two years and could be renewed upon the expiration date. A person cannot transfer their permit, but they can directly supervise other individuals who work without one. To apply for a permit, a person must: (1) provide a detailed statement to the director that gives the objectives for the excavation work, including the benefits that the applicant expects to gain from the work; and (2) obtain prior written permission from the director if the proposed site is on state land, or from the private owner if the proposed site is on private land. Once a person obtains a permit, he or she must always carry the permit while working on-site. Furthermore, the person must provide data and results from the excavation to the director on January 1 of each year that the permit is in effect. If a person violates the terms of their permit, he or she is guilty of a misdemeanor, punishable by a fine of between $100 and $500 and a prison term in the county jail for between ten days and six months.

        History: Section enacted in 1977; current through 2009 Legislative Session.

      10. What is the criminal liability for removing or damaging headstones?

        Protection of grave markers; penalties. W. Va. Code § 29-1-8A

        It is unlawful to remove or damage grave markers without a permit. This prohibition does not apply to two groups of people, who do not need to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        A person who intentionally removes or damages a grave marker without a permit or in violation of a permit’s terms and conditions is guilty of a misdemeanor. This crime is punishable by a prison sentence in county jail for between ten days and six months, or a fine of between $100 and $500, or both. Furthermore, defacement or destruction of each site constitutes its own separate offense. Finally, any person who knows that another person is illegally removing or damaging a grave marker and intentionally fails to alert law enforcement is guilty of a misdemeanor punishable by a fine of up to $100 and a prison sentence in county jail of up to 10 days.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      11. What are the general state criminal laws for abuse of corpse?

        Disinterment or displacement of dead body or part thereof. W. Va. Code § 61-8-14

        It is unlawful for a person to disturb a dead human body that is in a temporary or permanent burial place. A person who violates this section is guilty of a felony, punishable by a prison sentence in the state penitentiary between two and five years.

        History: Section enacted in 1882; current through 2009 Legislative Session.

      12. What are the general state criminal laws for theft?

        Grand and petit larceny distinguished; penalties. W. Va. Code § 61-3-13

        A person who commits simple larceny of goods and chattels worth more than $1,000 is guilty of grand larceny. That crime is a felony, punishable by either a prison sentence in the state penitentiary for between one and ten years, or a prison sentence of up to a year coupled with a fine of up to $2,500.

        A person who commits simple larceny of goods worth less than $1,000 is guilty of petit larceny. That crime is a misdemeanor, punishable by a prison sentence in a county jail of up to one year, or a fine up to $2,500, or both.

        History: Section enacted in 1957; current through 2009 Legislative Session.

        Larceny of things savoring of realty. W. Va. Code § 61-3-16

        This section classifies as "goods and chattels " things which savor of the realty, and are part of a freehold at the time they are stolen. This means that those things qualify as goods and chattels under the larceny section (W. Va. § 61-3-13).

        History: Section enacted in 1849; current through 2009 Legislative Session.

      13. What are the general state criminal laws for receiving stolen property?

        Receiving or transferring stolen goods. W. Va. Code § 61-3-18

        It is unlawful for one to buy or receive goods from another person that one knows or has reason to believe were stolen. A person who violates this section is guilty of larceny (W. Va. § 61-3-13), whether or not the original thief is convicted.

        History: Section enacted in 1849; current through 2009 Legislative Session.

        Bringing into this state, receiving or disposing of property stolen in another state; penalty. W. Va. Code § 61-3-19

        It is unlawful for one to buy or receive goods from another person that one knows or has reason to believe were stolen in another state. A person who violates this section is guilty of larceny (W. Va. § 61-3-13).

        History: Section enacted in 1849; current through 2009 Legislative Session.

      14. What are the general state criminal laws for unlawful trespass?

        Entry upon enclosed lands; penalty; liability for damages. W. Va. Code § 61-3-33

        It is unlawful under this section to: (1) enter another person’s enclosed lands, without their permission, and cause damage to the property; (2) enter another person’s lands after being forbidden by the person to do so; (3) open and leave open the gate or drawbar to another person’s enclosed land without that person’s consent; and (4) enter another person’s lands to curse, insult, or annoy them or any other person who is rightfully on the land.

        Anyone who commits one of these acts is guilty of a misdemeanor, punishable by a fine of between $5 and $100, or possibly a jail sentence of at least 5 days if one fails to pay the fine. In addition, the convicted person is liable to pay the owner for any damage to their property.

        History: Section enacted in 1882; current through 2009 Legislative Session.

        Trespass in structure or conveyance. W. Va. Code § 61-3B-2

        It is unlawful to knowingly enter a structure or conveyance without the owner’s permission. If one receives permission to enter a structure or conveyance, is also unlawful to refuse to leave upon the owner’s request. A person who commits either of these acts commits the crime of trespass . A person who commits trespass is guilty of a misdemeanor, punishable by a fine of up to $100.

        History: Section enacted in 1978; current through 2009 Legislative Session.

        Trespass on property other than structure or conveyance. W. Va. Code § 61-3B-3

        This section describes several forms of unlawful activity. First, it is unlawful for a person to knowingly and without permission enter and remain on another person’s property, not including structures or conveyances . A person who commits this offense is guilty of a misdemeanor, punishable by a fine of up to $100.

        Second, it is unlawful: (1) to refuse to leave another person’s property after the owner expressly tells one to do so; (2) to open a door, fence, or gate that leads to the destruction of crops or the release of animals; and (3) to damage another’s property while trespassing on that person’s land. A person who commits any of these three offenses is guilty of a misdemeanor, punishable by a fine between $100 and $500, a jail sentence of up to six months, or both.

        History: Section enacted in 1978; current through 2009 Legislative Session.

      15. What are the general state criminal laws for mischief?

        We are unable to locate information relevant to this question at this time.

      16. What are the general state criminal laws for damage to property?

        Removal, injury to or destruction of property, monuments designating land boundaries and of certain no trespassing signs; penalties. W. Va. Code § 61-3-30

        This section describes two offense levels for the crime of destruction of property. First, it is a felony for a person to intentionally and without authorization destroy or injure another person’s real or personal property to an extent that results in damage worth $2,500 or more. This crime is punishable by a fine of up to $2,500, a jail sentence of between one and ten years, or both. Second, it is a misdemeanor to intentionally and without authorization destroy another person’s real or personal property to an extent that results in up to $2,500 worth of damage. This crime is punishable by a fine of up to $500, a jail sentence of up to one year, or both.

        History: Section enacted in 1882; current through 2009 Legislative Session.

      17. What are the general state criminal laws for hate crimes?

        Prohibiting violations of an individual’s civil rights; penalties. W. Va. Code § 61-6-21

        This section does three things to protect people within the state from violence or intimidation by threat of violence on account of their race, color, religion, ancestry national origin, political affiliation, or sex.

        First, it is unlawful to harm, threaten to harm, or intimidate another person from exercising rights protected under the West Virginia Constitution or U.S. Constitution because of that person’s race, color, religion, ancestry national origin, political affiliation, or sex. Anyone who violates this prohibition is guilty of a felony, punishable by a fine of up to $5,000, a prison term of ten years, or both.

        Second, it is unlawful to conspire with another person to harm, threaten to harm, or intimidate a third person from exercising rights protected under the West Virginia Constitution or U.S. Constitution because of that person’s race, color, religion, ancestry national origin, political affiliation, or sex. Both people who violate this prohibition would be guilty of a felony, punishable by a fine of up to $5,000, a prison term of ten years, or both.

        Finally, judges should consider the fact that a defendant committed or attempted to commit a misdemeanor or felony because of the victim’s race, color, religion, ancestry, national origin, political affiliation or sex, as an aggravating factor when determining a defendant’s sentence.

        History: Section enacted in 1987; current through 2009 Legislative Session.

    2. Acts Prohibited by Law and Subject to Civil or Administrative Sanctions

      1. How is the excavation of historical and archeological resources restricted in this state?

        Protection of human skeletal remains, grave artifacts and grave markers; permits for excavation and removal; penalties. W. Va. Code § 29-1-8A

        It is unlawful to excavate historical or archaeological sites without a permit from the Director of the Historic Preservation Section. However, two groups of people are exempted from needing to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      2. How is the collection or removal of historical and archaeological resources restricted in this state?

        Protection of human skeletal remains, grave artifacts and grave markers; permits for excavation and removal; penalties. W. Va. Code § 29-1-8A

        It is unlawful to remove artifacts from historical or archaeological sites without a permit from the Director of the Historic Preservation Section. However, two groups of people are exempted from needing to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      3. What specific laws restrict the alienation or use of historical burial places?

        NOTE: Sections 37-13-1 to 37-13-7 give requirements for the reinterment and disposition of human remains from historic burial places presently located on private land.

        Jurisdiction to permit and order removal, etc. W. Va. Code § 37-13-1

        This section gives county circuit courts the authority to issue orders allowing the removal and reinterment of human remains from graves located on privately owned land within a court’s respective county. However, a county circuit court can only issue such an order to a plaintiff who owns title or color of title to the land as a matter of public record.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Improvement, construction or development upon privately owned lands containing graves. W. Va. Code § 37-13-1A

        This section prohibits private landowners from undertaking improvement, construction, or development projects on their land—if the projects would destroy or physically disturb a cemetery or graves on the land—without first filing a petition in the county circuit court.

        History: Section enacted in 2002; current through 2009 Legislative Session.

        Action; contents of petition. W. Va. Code § 37-13-2

        The petition that a private landowner files with the local county circuit court must include information about: (1) the title to the lands; (2) the condition of the graves at issue; (3) the interests of all relevant individuals in the lands and the remains in the graves, so far as the landowner knows; (4) the reason why the landowner seeks to remove the remains; and (5) the landowner’s proposed plan for disposition of the remains. With respect to number 3, the landowner must show in the petition that he or she has made a reasonable and diligent effort to find out the identity of the deceased people in the graves, and to find those peoples’ surviving next of kin, heirs-at-law, administrator, executor, or personal representative. If the court thinks it necessary, it can appoint a guardian ad litem to protect the interests of any of the individuals mentioned in number 3, whether living or dead.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Parties; notice. W. Va. Code § 37-13-3

        In an action to remove and reinter human remains from graves on private land, the private landowner who holds title to the land is the plaintiff, and the following parties are defendants: owners, lessees, or other people other than the plaintiff who have an interest in the land; and the surviving next of kin, heirs-at-law, administrator, executor, or personal representative of each deceased person buried in the graves, so far can be determined by reasonable and diligent effort.

        After the plaintiff files a petition with the court, he or she must make all possible efforts to serve notice to all defendants that alerts them to the petition, and tells them the date of the first hearing on the petition. The plaintiff must serve defendants in the same way that process gets served in other civil actions (W. Va. R. Civ. Proc. Rule 4). If the plaintiff is unable to find addresses for all of the defendants, or if the plaintiff is unable to locate a representative for each deceased person buried in the graves, then the plaintiff must also publish a copy of the notice in a county newspaper once a week for two consecutive weeks (see W. Va. Code § 59-3-2 for information on Class II legal advertisement).

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Hearing; discretion in granting or refusing relief; order. W. Va. Code § 37-13-4

        The county circuit court will hold a hearing on the plaintiff’s petition no sooner than three weeks after the petition is filed. At the hearing the court will hear evidence from plaintiffs and defendants. In making its decision, the court will consider the presented evidence, as well as evidence of the wishes of all people affected by the petition, both living and dead. If the court is satisfied that the plaintiff’s project is a proper one, the court will enter an order granting the plaintiff’s petition. The court can grant the petition in whole or in part, depending on whether the court has any reservations about the plaintiff’s plan.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Procedure upon removal. W. Va. Code § 37-13-5

        If the court decides to issue an order permitting the plaintiff to remove, transfer, and dispose of the human remains buried on the plaintiff’s land, then the order must require that the work be done with care, decency, and reverence for the remains of the deceased. The court can also include terms and conditions in the order to govern the method and manner of disposition of the human remains, including a requirement that the plaintiff use the services of a licensed funeral director.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Costs. W. Va. Code § 37-13-6

        If the plaintiff receives an order from the court granting the plaintiff’s petition, then the plaintiff alone is responsible for paying all of the litigation costs that the various parties incurred. Moreover, if the order grants plaintiff’s petition, the plaintiff is also responsible for the costs of removal, transfer and disposition of the buried human remains, as well as the cost of erecting appropriate memorials at the place where the remains are reinterred.

        If the order does not grant the plaintiff’s petition, or only grants it in part, then the court can divide the litigation costs among the various parties however the court sees fit.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Remedy herein provided cumulative. W. Va. Code § 37-13-7

        The requirements and procedures established in sections 37-13-1 to 37-13-6 are meant to apply in addition to existing laws in the West Virginia Code. That means that these sections do not affect the rights of eminent domain or condemnation of lands. In addition, these sections do not apply to W. Va. Code § 35-5-1, et seq., on cemeteries managed by religious organizations and nonprofits, and W. Va. Code § 29-1-8A, on the protection of historic sites and burial grounds.

        History: Section enacted in 1963; current through 2009 Legislative Session.

    3. Time Limits for Bringing Criminal Action

      1. What time limits govern the initiation of a criminal action related to the protection of burials?

        Limitation of prosecution; lost indictment. W. Va. Code § 61-11-9

        In West Virginia prosecutions for committing perjury must be brought within three years after the perjury was committed. Also, prosecutions for misdemeanors must be brought one year after the offense was committed. There is no time limitation for prosecutions of any other type of crime.

        This section also includes requirements for situations where indictments are stolen, lost, or destroyed. A prosecutor can bring a new indictment for a crime in the next court term after the prosecutor discovers that an indictment has been stolen, lost or destroyed. If the indictment involves a crime for which there is a time limit, then the period of time before the prosecutor learns that an indictment has been stolen, lost, or destroyed does not count towards the limit.

        History: Section enacted in 1882; current through 2009 Legislative Session.

    4. Time Limits for Bringing Civil Action

      1. What time limits govern the initiation of a civil action related to the protection of burials by the state, local authority, or a private party?

        Entry upon or recovery of lands. W. Va. Code § 55-2-1

        No one can file a claim to recover land until they have satisfied the requirements for making a claim for a period of ten years.

        History: Section enacted in 1861; current through 2009 Legislative Session.

        Personal actions not otherwise provided for. W. Va. Code § 55-2-12

        Unless there is a specific limitation given in another part of the code, the following time limits apply to civil actions brought by individuals: (1) two years for suits to recover for damage to property; (2) two years for suits to recover for personal injuries; and (3) one year for suits to recover damages that traditionally could not be brought at common law by a personal representative if the original plaintiff died.

        History: Section enacted in 1882; current through 2009 Legislative Session.

        Suit to repeal land grant. W. Va. Code § 55-2-14

        A plaintiff must file suit to repeal a land grant by the state of West Virginia, in whole or in part, within ten years after the grant was made.

        History: Section enacted in 1882; current through 2009 Legislative Session.

        Application of statute of limitation to State. W. Va. Code § 55-2-19

        Every statute of limitation included in the sections of Chapter 55, Article 2 are meant to apply to the state as well as private individuals, unless a section specifically says differently.

        History: Section enacted in 1882; current through 2009 Legislative Session.

  2. Sanctions

    1. Criminal

      1. What are the general criminal fines and penalties for misdemeanors and felonies in the state?

        Term of imprisonment for felony; indeterminate sentence. W. Va. Code § 61-11-16

        The judge who is hearing a case in which a defendant is convicted of a felony has the authority to impose a prison sentence. The sentence cannot, however, exceed the maximum sentence provided in the statute that defines the defendant’s crime.

        History: Section enacted in 1882; current through 2009 Legislative Session.

        Court to fix imprisonment and fine for misdemeanor. W. Va. Code § 61-11-17

        The judge who is hearing a case in which a defendant is convicted of a misdemeanor has the authority to impose a fine and prison sentence, within the guidelines provided in the criminal code. In addition to a fine or prison sentence, the judge can also sentence the defendant to participate in the litter control program.

        History: Section enacted in 1882; current through 2009 Legislative Session.

      2. What are the class designations for misdemeanors and felonies in the state?

        Classification of offenses. W. Va. Code § 61-11-1

        The state of West Virginia divides criminal offenses into two categories; felonies and misdemeanors. Felonies are defined as any offense that is punishable by a sentence of confinement within a state penitentiary. All other offenses are misdemeanors.

        History: Section enacted in 1947; current through 2009 Legislative Session.

    2. Civil or Administrative

      1. What are the civil sanctions related to burial protection in the state?

        Protection of human skeletal remains, grave artifacts and grave markers; permits for excavation and removal; penalties. W. Va. Code § 29-1-8A

        Any person who is criminally convicted of any of the offenses described in this section is also liable for civil damages. The local prosecuting attorney will consult with the Director of the Historic Preservation Section about what civil damages to seek. Civil damages may include: (1) forfeiture of any and all equipment that the defendant used in disturbing the protected unmarked graves or grave markers; (2) any and all costs incurred by the authorities in cleaning, restoring, and analyzing the recovered material; (3) any and all costs associated with recovering of data when the criminal activity was so extensive that restoration of the unmarked burials or grave markers was impossible; (4) any and all costs associated with restoring the land to its original contour or the grave marker to its original condition; (5) any and all costs associated with reinterring human skeletal remains; and (6) any and all costs that the authorities incur while seeking and collecting civil damages.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      2. What are the administrative sanctions related to burial protection in the state?

        We are unable to locate information relevant to this question at this time.

  3. Preservation of Burials and Compliance Therewith

    1. Laws Related to Preservation of Burials

      1. How are future interests in property involving burials subject to the rule against perpetuities?

        NOTE: Sections 36-1A-1 to 36-1A-8 contain West Virginia’s Uniform Statutory Rule Against Perpetuities. These sections apply to all real property, including property involving burials.

        Statutory rule against perpetuities. W. Va. Code § 36-1A-1

        First, a nonvested property interest is invalid unless, when the interest is created, it is certain either to vest or to terminate: within the lifetime of an individual alive at the time; within 21 years after that individual’s death; or within 90 years after the interest’s creation. Second, a general power of appointment that one cannot immediately exercise because of a condition precedent is invalid unless, when the power is created, the condition precedent is certain either to be satisfied or to become impossible to satisfy: within the lifetime of an individual alive at the time; within 21 years after that individual’s death; or within 90 years after the power’s creation. Finally, a nongeneral power of appointment or a general testamentary power of appointment is invalid unless, when the power is created, it is certain to be irrevocably exercised or otherwise terminated within: the lifetime of an individual alive at the time; within 21 years after the individual’s death; or within 90 years after the power’s creation. Under any of these three scenarios, the possibility that a child will be born to an individual after the individual’s death is irrelevant.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        When nonvested property interest or power of appointment created. W. Va. Code § 36-1A-2

        With two exceptions, the time when a grantor creates a nonvested property interest or power of appointment is determined under general property law principles. The first exception applies when only one person is eligible to become the unqualified beneficial owner of a nonvested property interest or a property interest subject to a power of appointment. In this circumstance, the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates. The second exception applies to a nonvested property interest or a power of appointment that arises from a transfer of property to a previously existing trust or other property arrangement. In this circumstance, the new nonvested property interest or power of appointment is considered to be created at the same time as the interest or power in the original contribution.

        History: Section enacted in 1992; current through 2009 Legislative Session.

        Reformation. W. Va. Code § 36-1A-3

        An interested person can petition a court to reform a grant or disposition in such a way that comes closest to the grantor’s original intention. The interested person can file a petition in one of three circumstances. First, if a nonvested property interest or a power of appointment becomes invalid under W. Va. Code § 36-1A-1. Second, if a class gift is not but might still become invalid under W. Va. Code § 36-1A-1 and the time has arrived for any class member to take possession of his or her share. Third, if a nonvested property interest can vest, but not: within the lifetime of an individual alive at the time; within 21 years after that individual’s death; or within 90 years after the interest’s creation.

        History: Section enacted in 1992; current through 2009 Legislative Session.

        Exclusions from statutory rule against perpetuities. W. Va. Code § 36-1A-4

        W. Va. Code § 36-1A-1 does not apply to a variety of legal arrangements and property transfers. First, this exception includes a nonvested property interest or a power of appointment arising out of a nondonative transfer, but not a nonvested property interest or a power of appointment arising out of: a premarital or postmarital agreement; a separation or divorce settlement; a spouse’s election; a similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties; a contract to make or not to revoke a will or trust; a contract to exercise or not to exercise a power of appointment; a transfer in satisfaction of a duty of support; or a reciprocal transfer. Second, the exception includes a fiduciary’s power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income. Third, the exception includes the power to appoint a fiduciary. Fourth, it includes discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal. Fifth, the exception includes a nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision. Sixth, it includes a nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan. Finally, the exception includes a property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another West Virginia statute.

        History: Section enacted in 1992; current through 2009 Legislative Session.

        Prospective application. W. Va. Code § 36-1A-5

        The first part of this section applies to a nonvested property interest or a power of appointment that is created on or after the statute’s effective date in 1992. For these interests, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.

        The second part of this section applies to a nonvested property interest or a power of appointment that was created before the statute’s effective date in 1992, and that violates this state’s rule against perpetuities as that rule existed on that date. For these interests, an interested party can petition a court to exercise its equitable power to reform the disposition in the manner that most closely approximates the grantor’s manifested plan of distribution and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.

        History: Section enacted in 1992; current through 2009 Legislative Session.

        Uniformity of application and construction. W. Va. Code § 36-1A-7

        As a uniform statute, these sections are meant to be applied in the same way in each state that enacts them.

        History: Section enacted in 1992; current through 2009 Legislative Session.

        Supersession repeal. W. Va. Code § 36-1A-8

        These sections are meant to supersede the common law rule known as the rule against perpetuities .

        History: Section enacted in 1992; current through 2009 Legislative Session.

      2. How can the state exercise eminent domain over a cemetery or historic property?

        Bodies which may exercise power of eminent domain. W. Va. Code § 51-1-1

        This section authorizes the following entities to exercise the power of eminent domain : the federal government; the state government; each local government entity; and each corporation that is organized under state law for the purpose of internal improvements.

        History: Section enacted in 1872; current through 2009 Legislative Session.

        Public uses for which private property may be taken or damaged. W. Va. Code § 54-1-2

        This section describes several of the public uses for which government entities can acquire private land through eminent domain. Some of these general uses include for roads, sewers, parks, municipal buildings, schools, utility lines, and power plants.

        With respect to this specific question, government entities can exercise eminent domain to create cemeteries or to enlarge existing ones. Government entities cannot, however, create a cemetery through eminent domain by taking lands within 400 feet of any private home. Moreover, if the government is extending a cemetery it cannot do so: nearer than 400 feet to a private home that is presently more than 400 feet away from the cemetery; or any nearer to a private home than the cemetery already is if the home is presently less than 400 feet from the cemetery.

        History: Section enacted in 1872; current through 2009 Legislative Session.

        Entry on lands. W. Va. Code § 54-1-3

        Any government entity that has the authority to exercise eminent domain can send officers or agents to enter private lands in order to examine, survey, and lay out lands or rights-of-way that the entity wants to acquire. These officers or agents cannot injure the private landowner in any way, including by opening fences or enclosures such that the landowner’s real or private property gets damaged.

        History: Section enacted in 1863; current through 2009 Legislative Session.

        NOTE: Sections 54-2-1 to 54-2-21 lay out the procedures that a government entity or corporation must follow to exercise eminent domain over private property.

        Jurisdiction. W. Va. Code § 54-2-1

        A government entity that wants to exercise eminent domain over private land must file a petition in the circuit court of the county where the land is located. If the tract of land lies in two counties, the government entity can file the petition in either county’s circuit court. The petition must request that the circuit court appoint commissioners to form a condemnation commission to determine the amount of money that the government entity must pay to properly compensate the private landowner.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Pleadings; verification; parties. W. Va. Code § 54-2-2

        The written petition that a government entity files to start an eminent domain proceeding must include the following information. First, the petition must sufficiently describe the property that the government entity proposes to take, and the public use for which it is being taken. Second, if the government entity intends to take an interest in the land less than a fee simple, then the petition must state: the specific interest the government will take; the names of any relevant private owners; and the interests that those owners will have after the government takes its interest. Third, if there are any liens or conflicting claims on the property, then the petition must describe the nature or amount of those liens or claims, and give the names and addresses of the individuals who hold those liens or claims. Finally, the petition must include information about whether there are potential owners whose names are unknown, or holders of contingent or executory interests in the property that would possibly give them title to the property later on. The government must do its best to notify these individuals of the petition, and any that come forward will be included as defendants to the petition.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Notice. W. Va. Code § 54-2-3

        The government must provide notice to all owners of the land or holders of liens on the land that the government seeks to condemn. The government must provide this notice at least ten days before the court hearing on the government’s petition, but the government can provide the notice either before or after it actually files the petition. If the government does not know the addresses for any of these owners, or does not know the identity of any of these owners, then the government must publish a notice in the county newspaper. This notice must contain: a specific description of the property that the government wants to acquire; the purpose for which the government plans to use the land; and the time and place at which the court hearing is to be held.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Persons under disability. W. Va. Code § 54-2-4

        If the owner of land or a lien is legally disabled, then the government must also notify the person’s guardian. If the person does not have a guardian, then the court may choose to appoint a guardian ad litem to defend the person’s interests. The court also may direct the government to pay any costs associated with the guardian ad litem’s representation of a disabled owner.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Commissioners; qualifications. W. Va. Code § 54-2-5

        Once the court is satisfied that the government has a lawful right to take the desired property, and that the government notified all interested parties, the court can appoint commissioners to determine the amount of just compensation that the government must pay for the property. There must be five commissioners, and each one must be a landowner in the county who does not have a stake in the property at issue. The following individuals cannot serve as commissioners: anyone who is personally interested in the property or in the compensation that the government must pay; anyone who is related by blood or marriage to one with a personal interest; anyone who is in a guardian-ward, master-servant, or principal-agent relationship with one who has a personal interest; or anyone who has a reason to be biased for or against one with a personal interest.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        How commissioners appointed. W. Va. Code § 54-2-6

        The court must appoint commissioners in the following way. First, the court nominates thirteen property owners from the county that do not have a stake in the eminent domain proceeding. Then, the government can strike four nominees, and the defendants can strike four nominees. The remaining five nominees become the commissioners. In the alternative, the court can decide by lot which nominees to dismiss under one of the following circumstances: if no individuals request to appear as defendants; if either the government or the defendants waive their right to strike nominees; or if either side strikes fewer than four nominees. Finally, after the commissioners are appointed the court can dismiss commissioners for good cause and appoint replacements to fill those vacancies.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Oath of commissioners. W. Va. Code § 54-2-7

        Before the commissioners start their period of service, they must take an oath that they will honestly and impartially determine just compensation for the private landowner whose lands the government wants to acquire. Whoever administers these oaths must file evidence of them with the office of the clerk of the county court.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Information for commissioners. W. Va. Code § 54-2-7A

        Before the commissioners begin their service, the court must inform them about their duties and responsibilities as commissioners, and the relevant law about condemnation proceedings. The court can give this information in writing or some other form.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Supervision of hearings; appointment, powers, duties and compensation of court commissioner; subpoena of witnesses, etc. W. Va. Code § 54-2-7B

        The court has the authority to preside over all of the condemnation commission’s hearings, or instead can appoint a "court commissioner" to preside in the court’s place. If the court appoints a court commissioner, then that individual is eligible to receive compensation for his or her services, in an amount that the court determines.

        During commission hearings, the court or court commissioner who is presiding, or the court clerk, can issue subpoenas and swear witnesses to ensure that their testimony is truthful. Moreover, the court or court commissioner can issue rulings on questions of evidence and instruct the commissioners, just like a judge is able to do during a civil trial.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Powers of commissioners; hearings; view of property. W. Va. Code § 54-2-8

        The condemnation commission can attend to official business if there are at least three commissioners present. Any individual commissioner has the power to issue subpoenas, or to swear witnesses to give truthful statements. The commissioners can also adjourn their sessions whenever they decide it is necessary.

        Any interested party can attend the commission’s hearings, with or without an attorney present. The parties can also present witnesses, depositions, or other evidence before the commission. The commission does not need to physically view the property that is at issue in the proceedings unless an interested party specifically requests it. If an interested party makes a request and the commission is being led by a court commissioner, then the court commissioner will preside over any proceedings that occur on the affected property.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Report of commissioners. W. Va. Code § 54-2-9

        After hearing all the evidence, and viewing the property if requested, the commission will determine an amount of just compensation that the government must pay to the private landowner. The commission must report its decision using specific language, which one can find here. At least three commissioners must sign the report, and then the commission must file it with the court clerk.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Separate findings of compensation and damages. W. Va. Code § 54-2-9A

        If the commission decides that the government must pay damages in addition to just compensation, then the property owner can request that the commission include a specific amount of damages in its report.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Proceedings on report; trial by jury. W. Va. Code § 54-2-10

        After the commission issues its report, both parties have a period of 10 days to file an exception to it. If neither party files an exception within this period, then the court should record the report as if it were a court order. The only reason why a court would not do this is if it had good reason to conclude that the commission’s report was clearly defective or inappropriate.

        Any exception that a party files must request that the court put the question of just compensation to a jury of twelve private landowners who are chosen in the same way as for civil actions. All jury members must meet the same eligibility requirements that exist for commissioners.

        The court will conduct the proceeding before the jury in the same way as a civil trial. Notably, neither party can call individual commissioners to testify about how they reached the amount of just compensation in the commissioner’s report. The jury’s deliberations must be guided by sections 54-2-9 and 54-2-9a, except that the jury is not required to actually visit the property at issue. If a party requests a visit, however, then the court judge will accompany the jury and preside over its visit.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Setting aside report; recommittal; new commissioners. W. Va. Code § 54-2-11

        The court has several options if it finds a condemnation commission’s report to be defective or erroneous. First, the court can reject the report and direct the same commission to issue a revised one. Second, the court can appoint a new commission, in the same way as the first one, to issue its own report. The court can take these steps as many times as necessary until it is satisfied with the report.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Waiver of findings by commissioners. W. Va. Code § 54-2-11A

        At any point before the court appoints condemnation commissioners, or the commissioners issue their report, the two parties can agree to waive the commission’s findings. To make this decision official, the parties must jointly file a stipulation to that effect with the clerk of the court. Once the parties waive the commission’s findings, the amount of just compensation is determined by a jury as in W. Va. Code § 54-2-10.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Vesting of title in applicant. W. Va. Code § 54-2-12

        After a condemnation commission issues a report or a jury issues a verdict about the amount of just compensation, the government has three months to pay that amount—plus ten percent interest from the date that the government filed its petition—to the court. Once the court receives this amount, the government gains title to the contested land; either in fee simple, or to whatever extent the government requested in its petition.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Entry on land on payment of compensation. W. Va. Code § 54-2-13

        Once the government pays the required amount of compensation and gains title to the land, barring any additional legal challenges from the defendants, the government can enter the land and begin using it for its specified public purpose. At that point, no court or judge should issue an injunction or stay to prevent the government from entering the land unless it is apparent that the government is exceeding the authority the government requested in its petition.

        Furthermore, W. Va. Code § 54-2-16 explains what happens once a condemnation commission or jury issues a final determination about just compensation. At that point, the government’s payment of just compensation and damages can go one of three ways.

        First, if the amount that the government originally paid to the court is not enough to meet the final decision of a condemnation commission report or a jury verdict, then the government must pay the amount owed to the court, plus ten percent interest, within three months. Under W. Va. Code § 54-2-17, if the government has to pay more after a final decision, then the government does not have a legal right to possess the land until it pays that additional amount. Once the government pays the additional amount, it gains title to the land (W. Va. Code § 54-2-12).

        Second, if the amount that the government paid was too much, then it is entitled to that extra amount. The government can receive this extra amount from the court fund that it originally paid into; but if there is not enough money in that fund, the government can collect from the individuals who received payments from the fund. The individuals must repay the necessary amount on a pro rata basis, and without added interest.

        Finally, the third situation occurs if the amount of necessary compensation in a commission’s report or jury’s verdict is less than the amount that the government originally paid to the court. In that situation, if the government can further show that it offered to pay the private landowner the amount that it paid to the court before the proceedings, but that the landowner refused to accept the amount, the court can require the landowner to pay all of the government’s costs from the proceeding. The landowner must pay these costs unless he or she can show that they refused to accept the government’s offer for some other reason than that the amount of compensation was not enough.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Entry by state or its political subdivisions. W. Va. Code § 54-2-14

        If the state government of West Virginia or one of its agencies files a petition to acquire private land through eminent domain, it can request that the court issue an order that allows it to immediately enter and take possession of the land. The court will only issue such an order if it is satisfied that the state government is seeking to acquire the land for a public purpose. If the court issues such an order, then the state government must pay to the court an amount that the government estimates is enough to cover just compensation and damages to the private landowner. Then, the amount that the state pays is sufficient security so the state does not need to pay an additional bond .

        If the state government takes immediate possession of private land, and proceeds to damage the land in some way, the government cannot break off the condemnation proceedings. The government instead is required to pay to the private landowner the final determined amount of just compensation and damages, plus ten percent interest calculated from the date when the state filed its petition. At this point, the state’s payment of just compensation and damages can proceed one of three ways.

        First, if the amount that the state originally paid to the court is not enough to meet the final decision of a condemnation commission report or a jury verdict, then the state must pay the amount owed to the court, plus ten percent interest, within three months.

        Second, if the amount that the state paid was too much, then the state is entitled to that extra amount. The state can receive this extra amount from the court fund that it originally paid into; but if there is not enough money in that fund, the state can collect from the individuals who received payments from the fund. The individuals must repay the necessary amount on a pro rata basis, and without added interest.

        Finally, the third situation occurs if the amount of necessary compensation in a commission’s report or jury’s verdict is less than the amount that the state originally paid to the court. In that situation, if the state can further show that it offered to pay the private landowner the amount that it paid to the court before the proceedings, but that the landowner refused to accept the amount, the court can require the landowner to pay all of the state’s costs from the proceeding. The landowner must pay these costs unless he or she can show that they refused to accept the state’s offer for some other reason than that the amount of compensation was not enough.

        History: Section enacted in 1937; current through 2009 Legislative Session.

        Alternative method for condemnation by state or its political subdivision. W. Va. Code § 54-2-14A

        The state government of West Virginia or one of its agencies can obtain title to, and then use, private land without a prior proceeding before a condemnation commission or a jury if the government follows these procedures. First, the government must file a petition to acquire private land through eminent domain with the local court. The court will issue an order granting the government’s petition if the court is satisfied that the government is seeking to acquire the land for a public purpose.

        Second, the government must pay to the court an amount that the government estimates is enough to cover just compensation and damages to the private landowner. Moreover, if one of the other parties requests it, the court can require the government to provide an additional bond to protect its deposit with the court clerk. In that instance, the government would need to pay the amount of the bond to the clerk before proceeding further.

        Third, the government actually gains title to the property once the government pays all necessary amounts to the court. Once the court receives the necessary amounts from the government, the private landowner, any lien holders, and any owners of conflicting claims can assert title to the money by following the requirements in W. Va. Code § 54-2-18. However, the government is still liable for the final amount that a condemnation commission or jury determines as just compensation and damages, and must later pay any additional amount that it owes. The government can also request the court to issue an order allowing the government to immediately enter the land and begin putting it to the stated public use. But if the government damages the land after entering it, the government cannot abandon its condemnation claim without the private landowner’s consent. This means once the government damages the land, there must be a final decision on the amount of just compensation by a condemnation commission or jury unless the landowner gives permission for there not to be.

        There are three possible outcomes once a condemnation commission or jury determines the final appropriate amount of just compensation that the government must pay to the private landowner. First, if the amount that the government originally paid to the court is not enough to meet the final decision of a condemnation commission report or a jury verdict, then the government must pay the amount owed to the court, plus ten percent interest, within three months. Second, if the amount that the government paid was too much, then it is entitled to that extra amount. The government can receive this extra amount from the court fund that it originally paid into; but if there is not enough money in that fund, the government can collect from the individuals who received payments from the fund. The individuals must repay the necessary amount on a pro rata basis, and without added interest. Finally, the third situation occurs if the amount of necessary compensation in a commission’s report or jury’s verdict is less than the amount that the government originally paid to the court. In that situation, if the government can further show that it offered to pay the private landowner the amount that it paid to the court before the proceedings, but that the landowner refused to accept the amount, the court can require the landowner to pay all of the government’s costs from the proceeding. The landowner must pay these costs unless he or she can show that they refused to accept the government’s offer for some other reason than that the amount of compensation was not enough.

        Once the commission or jury issues its final determination about compensation and the government makes any necessary adjustments to the amount it originally paid into the court, the government gains official title to the land in fee simple .

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Alternative procedure for condemnation by business corporation; bond. W. Va. Code § 54-2-15

        Business corporations that are authorized to exercise eminent domain must do so in a different way than the state government. To take possession of private land, a corporation must file the following documents with the court for the county where the private land is located: (1) a petition; (2) a bond payable to the private landowner for an amount that the corporation estimates would be just compensation for the landowner; and (3) good sureties. Any indemnity company that is authorized to conduct business in West Virginia is considered to be a good and sufficient surety for any necessary bond.

        After the corporation files the necessary documents, the process can go one of several ways. In the first circumstance, the corporation is able to locate the rightful private owner. If the private landowner is sui juris and informs the court that he or she does not object to the corporation’s bond, then the corporation is entitled to go ahead and take possession of the owner’s land.

        In the second circumstance, either: the landowner objects to the form or amount of the bond or sureties; the corporation cannot locate the landowner; or the landowner is not sui juris. In any of these situations, the court must hold a hearing with the two parties. The court must schedule this hearing for five days after the corporation has properly notified the private landowner. If the corporation is able to locate the landowner, then the corporation must serve the landowner with written process if the landowner is sui juris, or serve the landowner’s legal guardian if not. If the corporation is not able to locate the landowner or the landowner’s guardian, then the corporation must post on the land at issue a written notice of the hearing’s time and place.

        At the hearing, the judge will hear evidence from the two parties about whether the amount of the bond or the sureties is sufficient to compensate the landowner. Furthermore, the judge has the authority to require the corporation to provide additional bonds or sureties to the landowner. Once the judge is satisfied that the corporation has given the proper bond and sureties, and that the corporation will use the land for a public purpose, the judge will issue an order allowing the corporation to enter the private land and begin using it. If the corporation damages the land after entering it, then the corporation cannot abandon the condemnation proceeding until a condemnation commission or jury issues its final determination on the amount of just compensation. If this amount is more than the bond that the corporation originally gave, then the corporation must pay the private owner what it owes plus ten percent from the date the corporation filed its petition.

        History: Section enacted in 1907; current through 2009 Legislative Session.

        Liability for costs generally. W. Va. Code § 54-2-16A

        Unless one of these sections specifically says otherwise, one should assume that the entity submitting a petition for eminent domain—whether a government or a corporation—must pay the costs of the condemnation proceeding in the trial court. For proceedings in an appellate court, the prevailing party is entitled to recover its legal costs.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Payment to clerk; disposition of money paid into court; determination of conflicting claims; notice to condemnee. W. Va. Code § 54-2-18

        A government or corporate entity exercising eminent domain can pay any amount of required compensation to the court clerk. Once the clerk officially receives money, he or she becomes legally responsible for it. Within ten days after a government or corporate entity pays money to the clerk, it must notify all other parties of record by sending a written notice by certified mail to each party’s last known address. If the entity fails to send notice, then it must pay a penalty of ten percent interest on the amount it originally paid, running from the deadline for the notice up until the time when the entity actually gives it.

        The judge is responsible for distributing appropriate compensation awards to entitled private parties once he or she is satisfied that all of those parties have been identified. If there are no objections from outside interested parties that have viable claims, the judge can use his or her discretion to distribute the money to any and all parties in whatever proportions the judge thinks are necessary. When distributing the money, the judge must first deduct any amount needed to pay off taxes which are a lien on the condemned property. Furthermore, if any of the rightful parties have a legal disability (e.g.: is a minor, has a mental disability, or is incarcerated), the judge must conduct his or her own investigation into those parties’ claims that is independent of the original petition. The judge must ensure that these parties’ rights to compensation are protected.

        On the other hand, if the judge determines there to be a controversy about what parties are entitled to compensation, then the judge must hold a hearing on the issue. The judge must then issue an order that states the time and place for the hearing, and can arrange to publish the notice in a county newspaper. The judge can later direct the prevailing party to pay for the cost of publication. Furthermore, the judge can appoint a commissioner to assist with gathering evidence about the competing claims. Finally, after the hearing the judge has the authority to distribute the compensation funds as he or she sees fit, with or without considering the evidence gathered by the commissioner. As above, when distributing the money the judge must first deduct any amount needed to pay off taxes which are a lien on the condemned property. Furthermore, if any of the rightful parties have a legal disability (e.g.: is a minor, has a mental disability, or is incarcerated), the judge must conduct his or her own investigation into those parties’ claims that is independent of the original petition. The judge must ensure that these parties’ rights to compensation are protected.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Compensation of commissioners and jurors. W. Va. Code § 54-2-19

        In return for service, each commissioner serving on a condemnation commission is entitled to a reasonable amount that the court will determine. This amount cannot exceed $50 per day. Moreover, jurors serving on a condemnation proceeding receive the same amount of compensation that the court pays to jurors on felony cases.

        History: Section enacted in 1875; current through 2009 Legislative Session.

        Recordation of certified copy of condemnation order. W. Va. Code § 54-2-20

        Once a court issues an order authorizing a government or corporate entity to take title to land through eminent domain, the clerk is responsible for filing and recording the order with the clerks of the courts for each county that contains part of the land involved. Once the order is properly recorded, the entity is considered to be the purchaser of the land, and has all appropriate legal rights as if the private landowner actually sold the land to the entity.

        History: Section enacted in 1875; current through 2009 Legislative Session.

      3. How are conservation and preservation easements created in this state?

        Short title. W. Va. Code § 20-12-1

        Sections 20-12-1 to 20-12-8 comprise the "Conservation and Preservation Easements Act."

        History: Section enacted in 1995; current through 2009 Legislative Session.

        Creation, transfer and duration. W. Va. Code § 20-12-4

        For the most part, a conservation easement or preservation easement works in much the same way as any other form of easement ; specifically, how an easement is created, conveyed, recorded, assigned, released, modified, terminated, or altered. The holder of a conservation or preservation easement and the person with a third-party right of enforcement do not have the right to sue to enforce the easement until it is officially recorded. In general, a conservation easement or preservation easement is understood to last indefinitely, but for no reason can it last less than 25 years. Any real property interests, such as other easements or covenants, which already exist on the land before a conservation easement is created are not controlled by the conservation easement unless the interests are owned by the person who creates the conservation easement, and that person consents to the control.

        History: Section enacted in 1995; current through 2009 Legislative Session.

        Judicial and related actions. W. Va. Code § 20-12-5

        The following people or entities can bring a lawsuit to enforce a conservation or preservation easement: the owner of land on which the conservation easement was placed; the holder of the conservation easement; a person with a third-party right of enforcement; or any other person authorized to bring suit by another law. In addition, the easement holder must be a party in any claim or proceeding that could result in a license, permit, or order for demolition, alteration, or construction on the property.

        Despite the limitations in this section, courts are still free to modify or terminate conservation easements as needed. Moreover, courts should liberally construe conservation and preservation easements in favor of the original grants that created them.

        History: Section enacted in 1995; current through 2009 Legislative Session.

        Validity. W. Va. Code § 20-12-6

        A conservation or preservation easement is valid even though: it is not appurtenant to an interest in real property; it can be or has been given to another holder; it is not of a character that has been recognized traditionally at common law; it imposes a negative burden ; it requires the owner of the burdened property or the holder of the easement to affirmatively do something; the benefit does not touch or concern real property ; there is no privity of estate; or there is no privity of contract . Furthermore, a conservation or preservation easement must be recorded within sixty days after its effective date in order to be enforceable. Once the easement is recorded, these sections apply retroactively back to the easement’s effective date.

        History: Section enacted in 1995; current through 2009 Legislative Session.

        Applicability. W. Va. Code § 20-12-7

        These sections apply to any interest that is created after the effective date in 1995, whether or not it is explicitly called a conservation or preservation easement; this includes easements, covenants, and equitable servitudes . In addition, these sections apply back to interests created before 1995, as long as a retroactive application like that does not violate the United States Constitution. Finally, these sections do not invalidate any conservation easement, covenant, equitable servitude, restriction, or easement that otherwise is valid under other West Virginia state laws.

        History: Section enacted in 1995; current through 2009 Legislative Session.

        Uniformity of application and construction. W. Va. Code § 20-12-8

        The Conservation and Preservation Easements Act is a uniform law that is meant to be applied in the same way in each state that chooses to enact it. However, this Act is not meant to change West Virginia common law unless it explicitly says so. Moreover, the fact that a property has a conservation or preservation easement on it should not prevent the owner from creating another interest on the land, so long as it does not interfere with the conservation or preservation easement. If the owner wants to create an additional interest and grant it to another person, the owner must notify that person about the conservation or preservation easement at least 45 days before finalizing the grant.

        History: Section enacted in 1995; current through 2009 Legislative Session.

      4. How does the state create authorized rights-of-way through cemetery property?

        Access of certain persons to cemeteries and graves located on private land. W. Va. Code § 37-13A-1

        If a cemetery or grave site exists on privately owned land and there is no public means of ingress or egress available, then any authorized person who wants to visit the site has the right to reasonable ingress and egress to do so. Before the authorized person enters the private land, however, he or she must give the private landowner reasonable notice . The authorized person can only enter private land during reasonable hours, and for the following purposes: (1) visiting graves; (2) maintaining the grave site or cemetery; (3) burying a deceased person in a cemetery plot where the authorized person was already granted rights to bury dead bodies; and (4) conducting genealogy research.

        If no traditional access route is visible across the landowner’s property to the cemetery or gravesite, then the landowner can designate a route that the authorized person must take when crossing the private land. Moreover, in this circumstance, the landowner is not required to incur any expenses to improve the access route that he or she designates. In fact, unless the landowner specifically causes a traditional access route to become unusable, the landowner does not need to incur any expenses to satisfy this requirement of providing reasonable ingress and egress to the cemetery or grave site.

        Any private landowner who is required to provide reasonable access to authorized persons to a cemetery or gravesite—and does so in good faith—is not liable for any personal injury or property damage that occurs when the authorized persons are on the owner’s property.

        Finally, this section is not meant to affect a court’s authority to order human remains that are buried on private land to be disinterred and reburied in another suitable location.

        History: Section enacted in 2000; current through 2009 Legislative Session.

        Conduct of persons accessing cemeteries or grave sites; persons liable for damage. W. Va. Code § 37-13A-3

        Any person who is allowed under these sections to access a cemetery or grave site on private land is responsible for ensuring that they do not damage the private land or the cemetery or grave site. The visitor is liable to the private landowner for any damage that he or she causes on the owner’s land.

        History: Section enacted in 2000; current through 2009 Legislative Session.

        Limiting the use of motor vehicles on private lands. W. Va. Code § 37-13A-4

        These sections do not allow an authorized person to use a motor vehicle to access a cemetery or grave site on private land, unless: there is already a road across the property that can handle motor vehicle traffic; and the authorized person gets prior written permission from the private landowner to use a motor vehicle on the road.

        History: Section enacted in 2000; current through 2009 Legislative Session.

        Cause of action for injunctive relief. W. Va. Code § 37-13A-5

        If a private landowner denies an authorized person either reasonable access to a cemetery on the owner’s land, or permission to use a motor vehicle to access the cemetery, then the authorized person can file a suit in the county circuit court. The authorized person can request an injunction to compel the landowner to allow the authorized person to access the cemetery. As part of the injunction the court can set terms for the access, including frequency of access, hours, and duration. In addition, the court can issue a preliminary injunction without also requiring that the authorized person first file a bond or other security.

        History: Section enacted in 2000; current through 2009 Legislative Session.

        Application of article. W. Va. Code § 37-13A-6

        These sections do not apply to any deeds or ownership documents executed before the effective date in 2000 that created a cemetery or grave site on private property and established specific terms of access.

        History: Section enacted in 2000; current through 2009 Legislative Session.

        Existence of cemetery or grave site, notification. W. Va. Code § 37-13A-7

        If a governmental subdivision is notified of the existence of a cemetery or marked grave site within its jurisdiction that is not located within a dedicated cemetery, it must notify the owner of the affected land as soon as possible. The notification that the governmental subdivision sends must explain the requirements in these sections. Moreover, the governmental subdivision must document the grave site’s location, and submit any data that it collects to the Division of Culture and History.

        History: Section enacted in 2010; current through 2009 Legislative Session.

      5. How are the transfer of cemetery lots and the disposition of cemetery land regulated?

        Sale of part of cemetery; prohibitions. W. Va. Code § 35-5-2

        The trustees of a burial ground or an incorporated cemetery association are allowed to sell any part of the burial grounds for which they are responsible, as long as they follow several restrictions. First, such a sale cannot be prohibited by the original conveyance that gave the trustees or association control over the burial grounds. Second, the land that the trustees or association wants to sell cannot: disrupt access to lands that were already sold for burial purposes; or detach those lands from the rest of the cemetery.

        If these restrictions are satisfied, then the trustees or association must put the proposed sale to a vote at a meeting of the cemetery’s lot owners. Before the meeting, the trustees or association must publish a notice in a Class II legal advertisement (W. Va. Code § 59-3-2) that states the time and place for the meeting, and the proposal that will be discussed. If a majority of the lot owners at the meeting vote to approve the sale, then the trustees or association can go forward with it. After the land sale is finalized, the trustees or association is prohibited from disturbing any grave, monument, or landscaping within the cemetery. Moreover, the use of the land within the cemetery must remain restricted to cemetery purposes.

        History: Section enacted in 1872; current through 2009 Legislative Session.

      6. How will the state regulate or sell unsuitable or condemned cemetery property?

        We are unable to locate information relevant to this question at this time.

      7. What is the procedure for abandoning burial grounds or cemetery lots?

        NOTE: Section 35-5-8 describes the process that a cemetery company must undertake to have a cemetery lot owner’s rights considered abandoned. Section 35-5B-19 describes the process for preneed cemetery companies, which is the same as for cemetery companies.

        Abandoned interment rights. W. Va. Code § 35-5-8

        Cemetery companies are allowed to include provisions in their contracts to sell cemetery lots that say if a lot owner does not use his or her lot for a burial for a period of 75 years or more, the company can consider the lot abandoned after following several steps. First, the cemetery company must send a certified letter with return receipt requested to the last known address of lot owner of record, or the owner’s heirs or next of kin. This letter will include: (1) a notice of the company’s intent to declare the cemetery lot at issue abandoned; and (2) a request for the lot owner’s current address or the names and addresses of any appropriate heirs. If the company receives a written response, it must update its records with any name or address changes. Moreover, the company must maintain the lot owner’s burial rights for another period of 75 years, starting on the date that the company receives the written response.

        Second, the cemetery company must take additional steps if the registered letter is undeliverable or if the company does not receive a response within 30 days. In those circumstances, the company must also publish a notice in a newspaper circulated in the county where the cemetery is located, as well as in a newspaper circulated in the county where the lot owner’s last known address is located. The notice must contain: (1) a statement of the cemetery company’s intent to declare the lot owner’s burial rights abandoned; (2) the cemetery’s name and business address; and (3) the name of the last owner of record. The lot owner or the owner’s heirs then have 120 days to respond. If the company receives a written response, it must: update its records with any name or address changes; and maintain the lot owner’s burial rights for another period of 75 years, starting on the date that the company receives the written response. If the cemetery company does not receive a response to the published notice within 120 days, then the company can consider the lot owner’s burial rights abandoned and regain title to them. At this point, the company must amend its records to show the title change, and then keep these records for a period of 30 years.

        Within that 30 year period, the former lot owner or the owner’s heirs can attempt to prove to the cemetery company or a local court that they would have had title to the cemetery lot if it had not been abandoned. If the owner or heirs can satisfactorily do that, the cemetery company must provide them with similar burial rights at no additional cost.

        This section is effective on July 1, 1999, and is not meant to apply retroactively.

        History: Section enacted in 1999; current through 2009 Legislative Session.

        Abandoned interment rights. W. Va. Code § 35-5B-19

        Preneed cemetery companies are allowed to include provisions in their contracts to sell cemetery lots that say if a lot owner does not use his or her lot for a burial for a period of 75 years or more, the company can consider the lot abandoned after following several steps. First, the company must send a certified letter with return receipt requested to the last known address of lot owner of record, or the owner’s heirs or next of kin. This letter will include: (1) a notice of the company’s intent to declare the cemetery lot at issue abandoned; and (2) a request for the lot owner’s current address or the names and addresses of any appropriate heirs. If the company receives a written response, it must update its records with any name or address changes. Moreover, the company must maintain the lot owner’s burial rights for another period of 75 years, starting on the date that the company receives the written response.

        Second, the company must take additional steps if the registered letter is undeliverable or if the company does not receive a response within 30 days. In those circumstances, the company must also publish a notice in a newspaper circulated in the county where the cemetery is located, as well as in a newspaper circulated in the county where the lot owner’s last known address is located. The notice must contain: (1) a statement of the company’s intent to declare the lot owner’s burial rights abandoned; (2) the cemetery’s name and business address; and (3) the name of the last owner of record. The lot owner or the owner’s heirs then have 120 days to respond. If the company receives a written response, it must: update its records with any name or address changes; and maintain the lot owner’s burial rights for another period of 75 years, starting on the date that the company receives the written response. If the company does not receive a response to the published notice within 120 days, then the company can consider the lot owner’s burial rights abandoned and regain title to them. At this point, the company must amend its records to show the title change, and then keep these records for a period of 30 years.

        Within that 30 year period, the former lot owner or the owner’s heirs can attempt to prove to the company or a local court that they would have had title to the cemetery lot if it had not been abandoned. If the owner or heirs can satisfactorily do that, the company must provide them with similar burial rights at no additional cost.

        This section is effective on July 1, 1999, and is not meant to apply retroactively.

        History: Section enacted in 1999; current through 2009 Legislative Session.

      8. What is the procedure for removing or replacing headstones?

        Protection of grave markers; permits for excavation and removal. W. Va. Code § 29-1-8A

        It is unlawful to remove headstones from historical burial sites without a permit from the Director of Natural Resources. However, two groups of people are exempted from needing to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        The following are procedures for obtaining a permit to remove headstones or other grave markers. First, the Director of Historic Preservation must create and chair an ad hoc committee to develop the permit’s terms and conditions. The committee must be composed of the chairperson plus six to eight members who represent: known or presumed lineal descendants; private and public organizations with a cultural affiliation to the affected site; the Council for West Virginia Archaeology; and the West Virginia Archaeological Society. However, in the case of a Native American site, the committee must be composed of the chairperson plus six to eight members who represent: the Council for West Virginia Archaeology; the West Virginia Archaeological Society; and known or presumed lineal descendants, preferably those who are culturally affiliated with tribes that existed in the geographic area that is now West Virginia.

        Second, if the site at issue is owned by an individual or partnership and is smaller than five acres, the ad hoc committee must: be formed within 30 days after the property owner submits his or her permit application; meet within 60 days of the submittal; and issue a decision within 90 days of the submittal.

        Third, the permit applicant is allowed to submit to the committee any information that would help it to reach a decision, including: a detailed statement giving the applicant’s reasons and objectives for removing the headstones, along with the benefits that the applicant expects to obtain from the proposed work; and the prior written permission of the owner if the site of the proposed removal is on privately owned land.

        Finally, all permits must at a minimum address the following conditions: (1) the methods by which the applicant will notify lineal descendants of the deceased prior to removing headstones; (2) the respectful manner in which the applicant will remove and handle the headstones; (3) the methods by which the applicant will scientifically analyze the headstones and how long those studies will last; (4) the methods by which the applicant will care for and maintain the recovered headstones; and (6) any other conditions that the director thinks are necessary. The applicant is responsible for paying any expenses associated with the committee creating the permit conditions, except in cases where the deceased’s descendants are willing to share or assume the costs.

        If the committee decides to issue a permit, it must be set to expire after two years with the possibility of renewal at that time. Moreover, if the permit holder violates any of the permit’s terms or conditions, then the director can revoke the permit at any time. The permit is nontransferable, but a person without a permit can work directly under someone who does have one.

        As permits are issued, the Director of the Historic Preservation Section is responsible for maintaining a catalogue of unmarked grave locations across the state.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      9. How will the state preserve historical or archaeological resources threatened by public construction or public works?

        We are unable to locate information relevant to this question at this time.

      10. What are the procedures for excavating or removing remains or archaeological resources on public lands?

        NOTE: Section 29-1-8A describes the procedure for excavating human remains from public lands. Section 20-7A-5 describes the procedure for excavating archaeological resources from caves.

        Protection of human skeletal remains; permits for excavation and removal; penalties. W. Va. Code § 29-1-8A

        It is unlawful to excavate and remove human remains from historical or archaeological sites without a permit from the Director of Natural Resources. However, two groups of people are exempted from needing to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        The following are procedures for obtaining a permit to excavate and remove human remains. First, the Director of Historic Preservation must create and chair an ad hoc committee to develop the permit’s terms and conditions. The committee must be composed of the chairperson plus six to eight members who represent: known or presumed lineal descendants; private and public organizations with a cultural affiliation to the affected site; the Council for West Virginia Archaeology; and the West Virginia Archaeological Society. However, in the case of a Native American site, the committee must be composed of the chairperson plus six to eight members who represent: the Council for West Virginia Archaeology; the West Virginia Archaeological Society; and known or presumed lineal descendants, preferably those who are culturally affiliated with tribes that existed in the geographic area that is now West Virginia.

        Second, the permit applicant is allowed to submit to the committee any information that would help it to reach a decision, including: a detailed statement giving the applicant’s reasons and objectives for the excavation, along with the benefits that the applicant expects to obtain from the proposed work.

        Third, all permits must at a minimum address the following conditions: (1) the methods by which the applicant will notify lineal descendants of the deceased prior to excavating; (2) the respectful manner in which the applicant will remove and handle the remains; (3) the methods by which the applicant will scientifically analyze the remains and how long those studies will last; (4) the methods by which the applicant will care for and maintain the recovered remains; and (6) any other conditions that the director thinks are necessary. The applicant is responsible for paying any expenses associated with the committee creating the permit conditions, except in cases where the deceased’s descendants are willing to share or assume the costs.

        If the committee decides to issue a permit, it must be set to expire after two years with the possibility of renewal at that time. Moreover, if the permit holder violates any of the permit’s terms or conditions, then the director can revoke the permit at any time. The permit is nontransferable, but a person without a permit can work directly under someone who does have one. As the applicant’s excavations are ongoing, he or she must submit annual reports to the director that give resulting data and findings. In addition, the applicant must submit a final report to the director after completing the excavations.

        As permits are issued, the Director of the Historic Preservation Section is responsible for maintaining a catalogue of unmarked grave locations across the state.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Archaeology in caves; permits for excavation; how obtained; prohibitions; penalties. W. Va. Code § 20-7A-5

        A person can obtain a permit from the Director of Natural Resources to excavate or remove archaeological resources from caves on state-owned land. The permit would be good for two years and could be renewed upon the expiration date. A person cannot transfer their permit, but they can directly supervise other individuals who work without one. To apply for a permit, a person must: (1) provide a detailed statement to the director that gives the objectives for the excavation work, including the benefits that the applicant expects to gain from the work; and (2) obtain prior written permission from the director. Once a person obtains a permit, he or she must always carry the permit while working on-site. Furthermore, the person must provide data and results from the excavation to the director on January 1 of each year that the permit is in effect. If a person violates the terms of their permit, he or she is guilty of a misdemeanor, punishable by a fine of between $100 and $500 and a prison term in the county jail for between ten days and six months.

        History: Section enacted in 1977; current through 2009 Legislative Session.

      11. What are the procedures for excavating or removing remains or archaeological resources on private lands?

        NOTE: Sections 37-13-1 to 37-13-7 describe requirements for excavating human remains from private lands. Section 29-1-8A also describes procedures for excavating human remains. Section 20-7A-5 describes the procedure for excavating archaeological resources from caves.

        Jurisdiction to permit and order removal, etc. W. Va. Code § 37-13-1

        This section gives county circuit courts the authority to issue orders allowing the removal and reinterment of human remains in graves located on privately owned land within a court’s respective county. However, a county circuit court can only issue such an order to a plaintiff who owns title or color of title to the land as a matter of public record.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Improvement, construction or development upon privately owned lands containing graves. W. Va. Code § 37-13-1A

        This section prohibits private landowners from undertaking improvement, construction, or development projects on their land—if the projects would destroy or physically disturb a cemetery or graves on the land—without first filing a petition in the county circuit court.

        History: Section enacted in 2002; current through 2009 Legislative Session.

        Action; contents of petition. W. Va. Code § 37-13-2

        The petition that a private landowner files with the local county circuit court must include information about: (1) the title to the lands; (2) the condition of the graves at issue; (3) the interests of all relevant individuals in the lands and the remains in the graves, so far as the landowner knows; (4) the reason why the landowner seeks to remove the remains; and (5) the landowner’s proposed plan for disposition of the remains. With respect to number 3, the landowner must show in the petition that he or she has made a reasonable and diligent effort to find out the identity of the deceased people in the graves, and to find those peoples’ surviving next of kin, heirs-at-law, administrator, executor, or personal representative. If the court thinks it necessary, it can appoint a guardian ad litem to protect the interests of any of the individuals mentioned in number 3, whether living or dead.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Parties; notice. W. Va. Code § 37-13-3

        In an action to remove and reinter human remains from graves on private land, the private landowner who holds title to the land is the plaintiff, and the following parties are defendants: owners, lessees, or other people other than the plaintiff who have an interest in the land; and the surviving next of kin, heirs-at-law, administrator, executor, or personal representative of each deceased person buried in the graves, so far can be determined by reasonable and diligent effort.

        After the plaintiff files a petition with the court, he or she must make all possible efforts to serve notice to all defendants that alerts them to the petition, and tells them the date of the first hearing on the petition. The plaintiff must serve defendants in the same way that one serves process in other civil actions (W. Va. R. Civ. Proc. Rule 4). If the plaintiff is unable to find addresses for all of the defendants, or if the plaintiff is unable to locate a representative for each deceased person buried in the graves, then the plaintiff must also publish a copy of the notice in a county newspaper once a week for two consecutive weeks (see W. Va. Code § 59-3-2 for information on Class II legal advertisement).

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Hearing; discretion in granting or refusing relief; order. W. Va. Code § 37-13-4

        The county circuit court will hold a hearing on the plaintiff’s petition no sooner than three weeks after the petition is filed. At the hearing the court will hear evidence from plaintiffs and defendants. In making its decision, the court will consider the presented evidence, as well as evidence of the wishes of all people affected by the petition, both living and dead. If the court is satisfied that the plaintiff’s project is a proper one, the court will enter an order granting the plaintiff’s petition. The court can grant the petition in whole or in part, depending on whether the court has any reservations about the plaintiff’s plan.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Procedure upon removal. W. Va. Code § 37-13-5

        If the court decides to issue an order to permit the plaintiff to remove, transfer, and dispose of the human remains buried on the plaintiff’s land, then the order must require that the work be done with care, decency, and reverence for the remains of the deceased. The court can also include terms and conditions in the order to govern the method and manner of disposition of the human remains, including a requirement that the plaintiff use the services of a licensed funeral director.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Costs. W. Va. Code § 37-13-6

        If the plaintiff receives an order from the court granting the plaintiff’s petition, then the plaintiff alone is responsible for paying all of the litigation costs that the various parties incurred. Moreover, if the order grants plaintiff’s petition, the plaintiff is also responsible for the costs of removal, transfer and disposition of the buried human remains, as well as the cost of erecting appropriate memorials at the place where the remains are reinterred.

        If the order does not grant the plaintiff’s petition, or only grants it in part, then the court can divide the litigation costs among the various parties however the court sees fit.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Remedy herein provided cumulative. W. Va. Code § 37-13-7

        The requirements and procedures established in sections 37-13-1 to 37-13-6 are meant to apply in addition to existing laws in the West Virginia Code. That means that these sections do not affect the rights of eminent domain or condemnation of lands. In addition, these sections do not apply to W. Va. Code § 35-5-1, et seq., on cemeteries managed by religious organizations and nonprofits, and W. Va. Code § 29-1-8A, on the protection of historic sites and burial grounds.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Protection of human skeletal remains; permits for excavation and removal; penalties. W. Va. Code § 29-1-8A

        It is unlawful to excavate and remove human remains from historical or archaeological sites without a permit from the Director of Natural Resources. However, two groups of people are exempted from needing to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        The following are procedures for obtaining a permit to excavate and remove human remains. First, the Director of Historic Preservation must create and chair an ad hoc committee to develop the permit’s terms and conditions. The committee must be composed of the chairperson plus six to eight members who represent: known or presumed lineal descendants; private and public organizations with a cultural affiliation to the affected site; the Council for West Virginia Archaeology; and the West Virginia Archaeological Society. However, in the case of a Native American site, the committee must be composed of the chairperson plus six to eight members who represent: the Council for West Virginia Archaeology; the West Virginia Archaeological Society; and known or presumed lineal descendants, preferably those who are culturally affiliated with tribes that existed in the geographic area that is now West Virginia.

        Second, if the site at issue is owned by an individual or partnership and is smaller than five acres, the ad hoc committee must: be formed within 30 days after the property owner submits his or her permit application; meet within 60 days of the submittal; and issue a decision within 90 days of the submittal.

        Third, the permit applicant is allowed to submit to the committee any information that would help it to reach a decision, including: a detailed statement giving the applicant’s reasons and objectives for the excavation, along with the benefits that the applicant expects to obtain from the proposed work; and the prior written permission of the private owner.

        Finally, all permits must at a minimum address the following conditions: (1) the methods by which the applicant will notify lineal descendants of the deceased prior to the excavation; (2) the respectful manner in which the applicant will remove and handle the remains; (3) the methods by which the applicant will scientifically analyze the remains and how long those studies will last; (4) the methods by which the applicant will care for and maintain the recovered remains; and (6) any other conditions that the director thinks are necessary. The applicant is responsible for paying any expenses associated with the committee creating the permit conditions, except in cases where the deceased’s descendants are willing to share or assume the costs.

        If the committee decides to issue a permit, it must be set to expire after two years with the possibility of renewal at that time. Moreover, if the permit holder violates any of the permit’s terms or conditions, then the director can revoke the permit at any time. The permit is nontransferable, but a person without a permit can work directly under someone who does have one. As the applicant’s excavations are ongoing, he or she must submit annual reports to the director that give resulting data and findings. In addition, the applicant must submit a final report to the director after completing the excavations.

        As permits are issued, the Director of the Historic Preservation Section is responsible for maintaining a catalogue of unmarked grave locations across the state.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Archaeology in caves; permits for excavation; how obtained; prohibitions; penalties. W. Va. Code § 20-7A-5

        A person can obtain a permit from the Director of Natural Resources to excavate or remove archaeological resources from caves on private land. The permit would be good for two years and could be renewed upon the expiration date. A person cannot transfer their permit, but they can directly supervise other individuals who work without one. To apply for a permit, a person must: (1) provide a detailed statement to the director that gives the objectives for the excavation work, including the benefits that the applicant expects to gain from the work; and (2) obtain prior written permission from the private owner. Once a person obtains a permit, he or she must always carry the permit while working on-site. Furthermore, the person must provide data and results from the excavation to the director on January 1 of each year that the permit is in effect. If a person violates the terms of a permit he or she is guilty of a misdemeanor, punishable by a fine of between $100 and $500 and a prison term in the county jail for between ten days and six months.

        History: Section enacted in 1977; current through 2009 Legislative Session.

      12. What are the procedures for discoveries of human remains and artifacts of cultural significance?

        Protection of human skeletal remains, grave artifacts and grave markers. W. Va. Code § 29-1-8A

        Anyone who discovers human skeletal remains or artifacts in an unmarked grave—whether on public or private land—must notify the county sheriff within 48 hours. If the remains or artifacts appear to be from an unmarked grave, then the sheriff must in turn notify the Director of the Historic Preservation Section. One exception to this requirement covers people who are conducting an archaeological investigation under a state or federal permit, who instead must notify the director directly.

        The director is then responsible for launching an investigation on the site to determine the site’s potential archaeological significance. If the director determines that the site does not possess archaeological significance, then the disposition of the human remains must follow the requirements under Chapter 37 Article 13 (summarized here). As part of these requirements, the director must notify the circuit court of the county where the site is located. On the other hand, if the director determines that the site does possess archaeological significance, the director has the duty to take all reasonable steps necessary to preserve the site, including consulting with relevant public or private organizations. Moreover, if the director thinks it necessary he or she can issue a permit for excavation or removal of remains and artifacts from the site. If the director chooses not to issue a permit, then he or she must provide reasons to the applicant in writing.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      13. What are the procedures for the disposition of human remains and funerary artifacts?

        Protection of human skeletal remains, grave artifacts and grave markers. W. Va. Code § 29-1-8A

        If a person excavates and removes human remains and funerary artifacts under a permit, he or she must follow the permit conditions about how to rebury the objects. On the contrary, remains or funerary objects that are not subject to reburial under a permit are to be held by the state of West Virginia in trust for its people. In these cases, the Director of Historic Preservation is responsible for the objects’ final disposition. Such objects that are not reburied must be maintained with dignity and respect by the West Virginia State Museum.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      14. What are the procedures for the removal and re-interment of human remains from cemeteries?

        Jurisdiction to permit and order removal, etc. W. Va. Code § 37-13-1

        This section gives county circuit courts the authority to issue orders allowing the removal and reinterment of human remains in cemeteries located on privately owned land within a court’s respective county. However, a county circuit court can only issue such an order to a plaintiff who owns title or color of title to the land as a matter of public record.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Improvement, construction or development upon privately owned lands containing graves. W. Va. Code § 37-13-1A

        This section prohibits private landowners from undertaking improvement, construction, or development projects on their land—if the projects would destroy or physically disturb a cemetery or graves on the land—without first filing a petition in the county circuit court.

        History: Section enacted in 2002; current through 2009 Legislative Session.

        Action; contents of petition. W. Va. Code § 37-13-2

        The petition that a private landowner files with the local county circuit court must include information about: (1) the title to the lands; (2) the condition of the graves at issue; (3) the interests of all relevant individuals in the lands and the remains in the graves, so far as the landowner knows; (4) the reason why the landowner seeks to remove the remains; and (5) the landowner’s proposed plan for disposition of the remains. With respect to number 3, the landowner must show in the petition that he or she has made a reasonable and diligent effort to find out the identity of the deceased people in the graves, and to find those peoples’ surviving next of kin, heirs-at-law, administrator, executor, or personal representative. If the court thinks it necessary, it can appoint a guardian ad litem to protect the interests of any of the individuals mentioned in number 3, whether living or dead.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Parties; notice. W. Va. Code § 37-13-3

        In an action to remove and reinter human remains from graves on private land, the private landowner who holds title to the land is the plaintiff, and the following parties are defendants: owners, lessees, or other people other than the plaintiff who have an interest in the land; and the surviving next of kin, heirs-at-law, administrator, executor, or personal representative of each deceased person buried in the graves, so far can be determined by reasonable and diligent effort.

        After the plaintiff files a petition with the court, he or she must make all possible efforts to serve notice to all defendants that alerts them to the petition, and tells them the date of the first hearing on the petition. The plaintiff must serve defendants in the same way that process gets served in other civil actions (W. Va. R. Civ. Proc. Rule 4). If the plaintiff is unable to find addresses for all of the defendants, or if the plaintiff is unable to locate a representative for each deceased person buried in the graves, then the plaintiff must also publish a copy of the notice in a county newspaper once a week for two consecutive weeks (see W. Va. Code § 59-3-2 for information on Class II legal advertisement).

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Hearing; discretion in granting or refusing relief; order. W. Va. Code § 37-13-4

        The county circuit court will hold a hearing on the plaintiff’s petition no sooner than three weeks after the petition is filed. At the hearing the court will hear evidence from plaintiffs and defendants. In making its decision, the court will consider the presented evidence, as well as evidence of the wishes of all people affected by the petition, both living and dead. If the court is satisfied that the plaintiff’s project is a proper one, the court will enter an order granting the plaintiff’s petition. The court can grant the petition in whole or in part, depending on whether the court has any reservations about the plaintiff’s plan.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Procedure upon removal. W. Va. Code § 37-13-5

        If the court decides to issue an order to permit the plaintiff to remove, transfer, and dispose of the human remains buried on the plaintiff’s land, then the order must require that the work be done with care, decency, and reverence for the remains of the deceased. The court can also include terms and conditions in the order to govern the method and manner of disposition of the human remains, including a requirement that the plaintiff use the services of a licensed funeral director.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Costs. W. Va. Code § 37-13-6

        If the plaintiff receives an order from the court granting the plaintiff’s petition, then the plaintiff alone is responsible for paying all of the litigation costs that the various parties incurred. Moreover, if the order grants plaintiff’s petition, the plaintiff is also responsible for the costs of removal, transfer and disposition of the buried human remains, as well as the cost of erecting appropriate memorials at the place where the remains are reinterred.

        If the order does not grant the plaintiff’s petition, or only grants it in part, then the court can divide the litigation costs among the various parties however the court sees fit.

        History: Section enacted in 1963; current through 2009 Legislative Session.

        Remedy herein provided cumulative. W. Va. Code § 37-13-7

        The requirements and procedures established in sections 37-13-1 to 37-13-6 are meant to apply in addition to existing laws in the West Virginia Code. That means that these sections do not affect the rights of eminent domain or condemnation of lands. In addition, these sections do not apply to W. Va. Code § 35-5-1, et seq., on cemeteries managed by religious organizations and nonprofits, and W. Va. Code § 29-1-8A, on the protection of historic sites and burial grounds.

        History: Section enacted in 1963; current through 2009 Legislative Session.

      15. How does the state regulate the opening and construction of highways through burial grounds or cemeteries?

        We are unable to locate information relevant to this question at this time.

      16. How does the state identify, preserve, and control Native American sacred sites?

        We are unable to locate information relevant to this question at this time.

      17. How does the state preserve historical lands from surface mining?

        Designation of areas unsuitable for surface mining; petition for removal of designation; prohibition of surface mining on certain areas; exceptions. W. Va. Code § 22-3-22

        This section establishes two ways to preserve historic lands from surface mining . First, any person can petition the Director of Environmental Protection to designate historic lands as unsuitable for surface mining if it is likely that the mining would significantly damage the historic or cultural value of the land. The petition must include allegations of fact, plus enough evidence to support those allegations. Once the director receives a petition, he or she must immediately begin to investigate the area specified in the petition. Moreover, within ten months after receiving a petition, the director must hold a public hearing at a place close to the affected area. Before the hearing, the director must publish a notice that states the hearing’s date, time, and location. Also, before the hearing any other interested person can submit their own petition with allegations and supporting facts. At the hearing, the director will hear testimony from the original petitioner, plus any other interested persons. Afterwards, the director has six months to reach a determination about the petition. Once the director reaches a determination, he or she must provide it and the reasons for it in writing to the petitioner and any additional persons who participated in the hearing. If the director decides to designate the area as unsuitable for surface mining, he or she must draft a detailed statement that discusses: (1) the potential coal resources in the area at issue; (2) the present demand for the coal resources; and (3) the impact of the director’s designation on the environment, the economy, and the supply of coal.

        Second, the section declares that after August 3, 1997, no one can commence surface mining operations in areas that will adversely affect a public park or a site included in the National Register of Historic Sites. For those sites, mining can only be conducted nearby if the mining operator gets joint approval from the Director of Environmental Protection and the federal, state, or local agency that operates the park or historic site.

        History: Section enacted in 1994; current through 2009 Legislative Session.

        Blasting restrictions; site specific blasting design requirement. W. Va. Code § 22-3-22A

        This section prohibits production blasting within 300 feet of a protected structure, which would likely include historic sites, and within 100 feet of a cemetery. The owner of a protected structure can agree in writing to waive the 300 foot restriction. If the protected structure is occupied by someone other than the owner, then the occupier must also agree in writing to waive the restriction.

        Furthermore, any blasting within 1,000 feet of a protected structure requires a site-specific blast design that is approved by the Office of Explosives and Blasting. The design must limit the type of explosives and detonating equipment, and the size, timing, and frequency of blasts in order to: (1) prevent injury to persons; (2) prevent damage to public and private property outside the blasting permit area; and (3) reduce dust outside the permit area.

        History: Section enacted in 1999; current through 2009 Legislative Session.

      18. What are the procedures for the exploration of submerged graves and underwater sites?

        We were unable to locate procedural information specific to exploring submerged graves or underwater sites at this time. For general procedures about excavating archaeological sites on public or private land, click here and here.

      19. What are the procedures for transferring land and property containing historic or cultural resources?

        We are unable to locate information relevant to this question at this time.

      20. What public health regulations exist for the removal and burial of human remains?

        Authorization for disposition and disinterment and reinterment permits. W. Va. Code § 16-5-23

        Before a dead human body can be disinterred, a licensed funeral director or embalmer must submit an application to the local registrar. One cannot disinter or reinter a dead body without first getting proper authorization. Authorization is not required, however, when one is following a legislative rule or an appropriate court order.

        History: Section enacted in 1969; current through 2009 Legislative Session.

      21. How is environmental impact measured for historic and archeological resources?

        We are unable to locate information relevant to this question at this time.

        Activities Affecting Burials which Require State or Local Government Compliance

      22. What activities affecting burials require state or local government compliance?

        Authorization for disposition and disinterment and reinterment permits. W. Va. Code § 16-5-23

        Several activities that affect burials require state or local government compliance. First, a funeral director must obtain proper authorization before carrying out the final disposition of a dead body. Second, a sexton or other individual responsible for burying dead bodies cannot allow a body to be buried without authorization for final disposition. Third, the person in charge of a cemetery or other burial site is responsible for keeping records of all the buried people on their site, which include: the name of the deceased person; the place of death; the date of burial; the name and address of the funeral director acting for the deceased person; and other necessary information. These records must be available for official inspection at any time. Finally, the person in charge of a cemetery must return the authorization to the respective funeral directors after they complete the final disposition of a dead body. By the tenth of each month, funeral directors must submit to the State Registrar all of the returned authorizations that they received during the previous month.

        History: Section enacted in 1969; current through 2009 Legislative Session.

        Rules, Regulations, and Ordinances Governing Burial-Related Activities

      23. What state regulations relate to non-governmental burial-related activities?

        We are unable to locate information relevant to this question at this time.

      24. What local regulations relate to non-governmental burial-related activities?

        We are unable to locate information relevant to this question at this time.

  4. Decision-Making

    1. Authorities Empowered to Make Decisions Affecting Burials

      1. How is a cemetery association formed in this state?

        NOTE: Section 35-5B-2 discusses requirements related to the formation of preneed cemetery companies.

        Information filing; fees, compliance agent. W. Va. Code § 35-5B-2

        After July 1, 1993, no person, partnership, firm, or corporation can operate a cemetery company without first paying an annual registration fee and submitting certain information to the state tax commissioner. The amount of the fee cannot exceed $400. The information that the operator must submit includes: the name and address of all officers, owners, and directors of the company; and the name of the designated compliance agent .

        Furthermore, the cemetery company must notify the tax commissioner of any changes to its submitted information within 90 days after the change occurs. The company must also notify the commissioner if company’s ownership changes, or if the compliance agent changes. For any of these changes, the cemetery company must pay an additional fee of up to $100.

        History: Section enacted in 1993; current through 2009 Legislative Session.

      2. Who has the right to conduct archaeological field excavations?

        Historic Preservation Section. W. Va. Code § 29-1-8

        The Historic Preservation Section has the authority to conduct archaeological field excavations on its own, or to issue permits to private individuals or organizations to do the work. The section’s authority specifically extends to state lands or private lands where the state acquires investigation and development rights (W. Va. Code § 29-1-8B).

        History: Section enacted in 1991; current through 2009 Legislative Session.

      3. Who has custody rights of discovered human remains?

        Protection of human skeletal remains, grave artifacts and grave markers. W. Va. Code § 29-1-8A

        If a person excavates and removes human remains and funerary artifacts under a permit, he or she must follow the permit conditions about how to rebury the objects. On the contrary, remains or funerary objects that are not subject to reburial under a permit are to be held by the state of West Virginia in trust for its people. In these cases, the Director of Historic Preservation is responsible for the objects’ final disposition. Such objects that are not reburied must be maintained with dignity and respect by the West Virginia State Museum.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      4. Who has the ownership rights of archaeological specimens or objects of cultural significance?

        Archaeology in caves; permits for excavation; how obtained; prohibitions; penalties. W. Va. Code § 20-7A-5

        A private person or organization can obtain a permit from the Director of Natural Resources to excavate or remove archaeological resources from caves on public or private land. The permit’s terms and conditions will specify who has ownership rights to any archeological specimens or objects of cultural significance that are discovered.

        History: Section enacted in 1977; current through 2009 Legislative Session.

        Historic Preservation Section. W. Va. Code § 29-1-8

        One of the duties of the Historic Preservation Section is to preserve and study objects of archaeological or cultural significance. Whether the section has ownership over those objects would depend on where the object was discovered (on private or public land) and the specific terms and conditions on the permit obtained by the party conducting the excavation.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      5. What rights do nonresidents of the state maintain?

        Protection of human skeletal remains; permits for excavation and removal; penalties. W. Va. Code § 29-1-8A

        As part of the procedure for obtaining a permit to excavate and remove human remains from public or private land, the Director of Historic Preservation must create and chair an ad hoc committee to develop the permit’s terms and conditions. The committee must be composed of the chairperson plus six to eight members who represent: known or presumed lineal descendants; private and public organizations with a cultural affiliation to the affected site; the Council for West Virginia Archaeology; and the West Virginia Archaeological Society. Those lineal descendants could be nonresidents of West Virginia. Additionally, in the case of a Native American site, the committee must be composed of the chairperson plus six to eight members who represent: the Council for West Virginia Archaeology; the West Virginia Archaeological Society; and known or presumed lineal descendants, preferably those who are culturally affiliated with tribes that existed in the geographic area that is now West Virginia. Similarly, these descendants or individuals with tribal affiliation to the deceased could be nonresidents.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      6. What has the authority to enforce criminal or unlawful actions regarding human remains and cultural resources?

        Protection of human skeletal remains, grave artifacts and grave markers; permits for excavation and removal; penalties. W. Va. Code § 29-1-8A

        Once the Director of the Historic Preservation Section becomes aware that a person is disturbing human remains or cultural resources, he or she can request that the local prosecuting attorney initiate a criminal prosecution or a civil suit seeking damages, injunctive relief, or some other form of appropriate relief. The director will then cooperate with the prosecuting attorney as the case progresses.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      7. Who has dominion and control of state historic or archaeological resources?

        Land; control and disposal; rules and regulations. W. Va. Code § 29-1-13

        The Division of Culture and History is responsible for controlling and administering all of the historic land that it owns, although the title to that land is held by the public land corporation of West Virginia. As part of the division’s authority, its commissioner can sell or dispose of any real or personal property that he or she decides does not have enough prehistorical, historical, archaeological, architectural, or cultural value for the division to keep it. Furthermore, the commissioner can make any necessary rules and regulations to manage the division’s property holdings.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      8. Who sits on the state historical commission, and how are these members appointed?

        NOTE: The Archives and History Commission plays an advisory role towards the Archives and History Section, Historical Preservation Section, and the Museum Section under the Division of Culture and History. Further details about the commission’s powers and duties can be found here.

        Archives and History Commission. W. Va. Code § 29-1-5

        The Archives and History Commission is composed of thirteen members plus two ex officio voting members and six ex officio nonvoting members. The Governor is responsible for nominating each of the thirteen commission members, who are then appointed after the advice and consent of the State Senate. The Governor appoints the members to staggered three-year terms. There are several restrictions on who the Governor can appoint as commission members. First, no more than seven members can be from the same political party. Second, members must fairly represent: both sexes; the ethnic and cultural diversity of the state; and the geographic diversity of the state.

        In addition to the thirteen appointed members, the president of the State Historical Society and the president of the State Historical Association serve as ex officio voting members on the Archives and History Commission. Furthermore, the following six individuals are ex officio nonvoting members of the commission: (1) the director of the State Geological and Economic Survey; (2) the president of the West Virginia Preservation Alliance, Inc.; (3) the State Historic Preservation Officer, who is the Commissioner of the Division of Culture and History; (4) the Director of the Archives and History Section; (5) the Director of the Historic Preservation Section; and (6) the Director of the Museums Section.

        The commission members are responsible for selecting a chairperson from among themselves. The Director of the Archives and History Section also serves as the commission’s secretary.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      9. Who sits on the state historic preservation board and for how long?

        NOTE: Section 29-1-5 designates the Archives and History Commission as the body responsible for acting as the "state review board" under the National Historic Preservation Act of 1966. A summary of the member and term requirements for the commission can be found here. In addition, section 29-1-2 designates the Commissioner of the Division of Culture and History as the state historic preservation officer.

    2. Scope of Authority

      1. What powers and responsibilities are delegated to cemetery associations in this state?

        NOTE: Chapter 35 Article 5 discusses cemetery companies, and Chapter 35 Article 5B discusses preneed cemetery companies.

        Sale of part of cemetery; prohibitions. W. Va. Code § 35-5-2

        The trustees of a burial ground or an incorporated cemetery association are allowed to sell any part of the burial grounds for which they are responsible, as long as they follow several restrictions. First, such a sale cannot be prohibited by the original conveyance that gave the trustees or association control over the burial grounds. Second, the land that the trustees or association wants to sell cannot: disrupt access to lands that were already sold for burial purposes; or detach those lands from the rest of the cemetery.

        If these restrictions are satisfied, then the trustees or association must put the proposed sale to a vote at a meeting of the cemetery’s lot owners. Before the meeting, the trustees or association must publish a notice in a Class II legal advertisement (W. Va. Code § 59-3-2) that states the time and place for the meeting, and the proposal that will be discussed. If a majority of the lot owners at the meeting vote to approve the sale, then the trustees or association can go forward with it. After the land sale is finalized, the trustees or association is prohibited from disturbing any grave, monument, or landscaping within the cemetery. Moreover, the use of the land within the cemetery must remain restricted to cemetery purposes.

        History: Section enacted in 1872; current through 2009 Legislative Session.

        NOTE: Click here for a description of a cemetery company’s responsibilities pertaining to endowment and maintenance funds.

        Cemetery property maintained by cemetery company. W. Va. Code § 35-5B-16

        A cemetery company is responsible for: maintaining and caring for the cemetery property that it owns; and opening and closing all graves, crypts, or niches for human remains on the cemetery property that it owns.

        History: Section enacted in 1993; current through 2009 Legislative Session.

        NOTE: Click here for a description of a preneed cemetery company’s responsibilities pertaining to endowment and maintenance funds.

      2. How are cemetery sales records to be kept?

        NOTE: Section 35-5-7 describes the requirements for the sales records of cemetery companies. Sections 35-5B-5 and 35-5B-9 describe the requirements for records of preneed cemetery companies.

        Requirements for cemetery company contracts. W. Va. Code § 35-5-7

        The following are requirements for every cemetery company contract that a cemetery company drafts. First, the contract must be written in clear understandable language and printed in easy-to-read type, size and style. Second, it must include the name and address of the seller, the contract buyer and the person for whom the contract is bought if other than the contract buyer. Third, it must contain a complete description of the property. Fourth, the contract must include a complete list of all applicable charges, including: the retail price of the property; the monument, or marker; installation of the monument or marker; the foundation; and the opening and closing of the grave site. Fifth, the contract must clearly state whether the retail price of the property, goods, or services is guaranteed. Sixth, the contract must state that when specific property, goods, or services are unavailable at the time of delivery, that the cemetery company will provide items or services that are similar in quality of material and workmanship. Moreover, in this circumstance the representative of the deceased has the right to choose a reasonable substitute. Finally, two copies of the contract must be executed, with one copy going to the buyer.

        History: Section enacted in 1999; current through 2009 Legislative Session.

        Requirements for preneed cemetery company contracts. W. Va. Code § 35-5B-5

        The following are requirements for every sales contract that a preneed cemetery company drafts. First, the contract must be written in clear understandable language and printed in easy-to-read type, size and style. Second, it must include the name and address of the seller, the contract buyer and the person for whom the contract is bought if other than the contract buyer. Third, it must contain a complete description of the property. Fourth, the contract must include a complete list of all applicable charges, including: the retail price of the property; the monument, or marker; installation of the monument or marker; the foundation; and the opening and closing of the grave site. Fifth, the contract must clearly state whether the retail price of the property, goods, or services is guaranteed. Sixth, the contract must state that when specific property, goods, or services are unavailable at the time of delivery, that the company will provide items or services that are similar in quality of material and workmanship. Moreover, in this circumstance the representative of the deceased has the right to choose a reasonable substitute. Finally, two copies of the contract must be executed, with one copy going to the buyer.

        History: Section enacted in 1993; current through 2009 Legislative Session.

        Seller required to keep records. W. Va. Code § 35-5B-9

        Preneed cemetery companies are required to keep detailed records of all contracts and transactions. These records are subject to periodic examination by the tax commissioner.

        History: Section enacted in 1993; current through 2009 Legislative Session.

      3. What power does the state have to acquire or purchase property of historic or archaeological significance?

        Historic Preservation Section; director. W. Va. Code § 29-1-8

        The Historic Preservation Section has the duty to locate, survey, and recommend to the commissioner for acquisition historic, archeological, or cultural sites, and structures or objects worthy of preservation such as human skeletal remains, graves, grave artifacts and grave markers;

        History: Section enacted in 1991; current through 2009 Legislative Session.

      4. How does the state manage park and historical sites?

        Section of parks and recreation; purpose; powers and duties generally. W. Va. Code § 20-5-3

        The purpose of the Section of Parks and Recreation is to promote conservation by preserving and protecting natural areas of unique or exceptional scenic, scientific, cultural, archaeological or historic significance.

        The section also has the responsibility to operate and maintain the following state parks: (1) the Berkeley Springs Historical State Park in Morgan County; (2) the portion of the Washington-Carver Camp in Fayette County that was formerly incorporated within Babcock State Park; (3) Camp Creek State Park; (4) Moncove Lake State park; (5) the Greenbrier River Trail, which consists of 75 miles of right-of-way along the former Greenbrier subdivision of the Chessie railroad system between Caldwell in Greenbrier County and Cass in Pocahontas County; (6) the North Bend Rail Trial, which consists of 60.57 miles of right-of-way of the CSX railway system between Walker in Wood County and Wilsonburg in Harrison County; and (7) the Blennerhassett Island Historical State Park.

        History: Section enacted in 1995; current through 2009 Legislative Session.

      5. What are the powers of municipal and county governments regarding park and historical sites?

        Municipality or county may establish historic landmarks commission; appointments; detailed provisions to be provided by ordinance or order; appropriation of funds. W. Va. Code § 8-26A-4

        Any municipality can issue an ordinance to establish a municipal historic landmarks commission. This commission would be composed of five members who are each appointed by the mayor. The ordinance would include specific details about: (1) the terms of each commission member; (2) the method for filling vacancies; (3) whether the members will be reimbursed for reasonable expenses incurred while performing their duties to the commission; (4) the officers to be selected from among the five commission members; (5) requirements for commission meetings; (6) requirements for quorum at commission meetings; (7) voting requirements for commission members; and (8) any other necessary details. Furthermore, if the municipal ordinance allows the landmarks commission to issue certificates of appropriateness, the ordinance must require that a majority of the commission members have a demonstrated special interest, or experience or education in history, architecture, planning, real estate or law.

        Additionally, any county commission can pass an order to create a county historic landmarks commission, and the county commission would then appoint its five members. The county commission’s order would include the same details and requirements as a municipal ordinance, described in the previous paragraph.

        When appointing members to landmark commissions, a municipality or county commission can seek the advice of any national, state, or local historical agency or society. Moreover, the municipality or county commission has sole authority to appropriate funds to its landmark commission.

        History: Section enacted in 1988; current through 2009 Legislative Session.

        Powers and duties of commission. W. Va. Code § 8-26A-5

        Local landmark commissions have several powers and duties. First, a landmark commission has the authority to survey and prepare a register of buildings, structures, districts, and sites within the commission’s jurisdiction that are of local, state, or national significance. After preparing a survey, a landmark commission can designate appropriate areas as historic districts, historic landmarks, or historic sites .

        Second, a commission can issue certificates of appropriateness (W. Va. Code § 8-26A-7). A commission can also establish standards for care and maintenance of designated historic properties, and withdraw certificates from property owners who fail to meet those standards.

        Third, a commission can install markers to denote registered historic districts, landmarks, or sites. Before installing the markers on the properties themselves, the commission must get consent from the property’s private owner. The commission can also install markers along highways or streets closest to the historic property.

        Fourth, a commission can acquire—by purchase, gift, or lease—registered historic properties or easements over such properties. Then, the commission can sell or lease acquired properties under terms and conditions designed to ensure that the properties are properly preserved.

        Fifth, the commission can aid and encourage its municipality or county to adopt ordinances and resolutions to preserve the buildings, structure, and character of historic properties.

        Sixth, the commission can coordinate with and seek advice from private individuals, private groups, and state or local government agencies about historical preservation programs.

        Seventh, the commission can seek and accept gifts, bequests, endowments, and funds from any possible sources to accomplish the commission’s purposes.

        Finally, a landmark commission has the authority to adopt any necessary rules or regulations to accomplish its purposes. The commission’s rules, however, cannot take precedence over local ordinances should they contradict.

        History: Section enacted in 1988; current through 2009 Legislative Session.

        Designation; report. W. Va. Code § 8-26A-6

        This section describes the procedures that a local landmark commission must follow to designate a historic landmark or historic district . Once a landmark commission decides that it wants to designate a historic landmark or district, it must first draft a report on the proposed property’s historical, cultural, and architectural significance. The commission then submits this report—along with any necessary maps or photographs—to the West Virginia Department of Culture and History. A report to establish a historic district must include a map that shows the proposed boundaries for the district. After receiving a report, the department has 45 days to prepare written comments.

        When selecting potential properties and drafting reports, the landmark commission must bear several standards in mind. First, to be deemed historic, a property must: (1) be prominently identified with a major aspect of the cultural, political, economic, military, or social history of the locality, region, state or nation; or (2) be significantly related to the life of a historic person or event that represents a major aspect of local, regional, state, or national history. Second, specifically for proposed buildings or structures, they must: (1) embody the principal or unique features of an architectural type; (2) demonstrate the style of an important historical period; (3) demonstrate a historically significant method of construction; or (4) illustrate the work of a historically significant master builder, designer, or architect.

        If a landmark commission is authorized to issue certificates of appropriateness, then before the commission can designate a historic landmark or district its local governing body must hold a public hearing about it. The governing body must circulate notice of the public hearing in two ways. First, the governing body must publish a notice at least two times in the main local newspaper where the proposed properties are located. Second, the governing body must send a written notice by certified mail with signed return receipt to all owners and occupants of proposed properties. All notices must be published or mailed between ten and twenty days before the public hearing.

        After the public hearing, the owners and occupants of a proposed property have a 30-day period to respond to the proposed designation. For a historic landmark, the owner must object to defeat the designation. For a historic district, 50% or more of property owners in the district must object to defeat the designation. If there is no such objection for a proposed landmark or district after 30 days, the landmark commission can go ahead to finalize the designation.

        Within 30 days after making the designation, the commission must send a written notification to all affected owners and occupants of designated properties. The notification must inform the owners and occupants about the necessity of obtaining a certificate of appropriateness before undertaking any material change to the appearance of a historic landmark or structure within a historic district.

        Finally, all designated historic landmarks and districts must be shown on the official county or municipality zoning map. If a county or municipality does not have an official zoning map, then the commission must mark the designated property on a map and submit it as a public record to serve as future notice of the designation.

        History: Section enacted in 1988; current through 2009 Legislative Session.

        Certificate of appropriateness; scope of review; standards of review; review procedures; variances, appeals. W. Va. Code § 8-26A-7

        This section controls when a municipality or county passes an ordinance to create a local landmark commission, and in that ordinance gives the commission the authority to issue certificates of appropriateness. These certificates will regulate new construction, alteration, removal, or demolition of buildings, sites and structures within a historic landmark or district. A commission authorized by a municipality or county to issue these certificates has a plenary power to do so, provided that the commission obeys these following requirements.

        First, an owner of property within a historic landmark or district must submit an application to the commission for a certificate of appropriateness before beginning work that will significantly alter the exterior architectural features of a building or structure on that property. A property owner must also submit an application before excavating or moving earth on or around earthworks within the landmark or district that are historically or archaeologically significant. Furthermore, the commission can request that an applicant submit any plans, elevations, specifications, drawings, photographs, or other information that the commission thinks would be reasonably necessary for it to decide whether or not to grant a certificate of appropriateness.

        A landmark commission must hold a public hearing to discuss every application for a certificate that it receives. Before the hearing, the commission must notify the public about it in three ways. First, the commission must publish a notice with the hearing’s date and time in a local newspaper. The commission must publish the notice at least seven days before it holds the hearing. Second, the commission must post a notice on or near the main entrance of the room where the commission usually meets. Third, the commission must take any necessary action to inform any property owners who are affected by the application. At the hearing, the applicant and any affected property owners will have an opportunity to be heard.

        After the hearing, the commission should review all relevant information in making its determination. The commission has 45 days after an application is submitted to issue a determination. In making a determination, the commission should consider the following factors: (1) the historical and architectural integrity and significance; (2) the architectural style; (3) the design, arrangement, texture and materials of exterior architectural features; and (4) the relationship and general compatibility of the proposed changes to the historical value, exterior architectural style, and pertinent features of nearby structures.

        The commission should approve an application if it determines that a project is appropriate under the four factors above. If the commission decides to approve an application, then it shows its approval by issuing a certificate of appropriateness.

        If the commission rejects an application, it must send the applicant a record of the rejection, along with a written explanation of the commission’s reasons. Within the explanation, the commission may choose to include recommendations about features of the proposal’s design, arrangement, texture, or material. The applicant can then modify his or her plans and resubmit them to the commission. If the commission rejects an application for a project that would have required a building permit, then the building inspector is prohibited from issuing such a permit to the applicant. Moreover, any person who is adversely affected by the commission’s decision to approve or reject an application can file an appeal in the circuit court of the county where the historic property is located.

        If the commission decides that it is necessary to acquire a unique historic property in order to preserve it, then the commission can do so after getting the local governing body’s approval. With the approval, the commission can acquire the historic property by gift, purchase, or exchange.

        If the enforcement of the requirements in this section would unduly burden a private property owner, then the commission can decide not to strictly enforce them. The commission can do this so long as it still upholds the section’s general purpose and intent; to maintain the architectural and historical integrity of unique buildings and districts.

        The commission must keep records of all the applications that it receives for certificates of appropriateness, and of all its proceedings.

        Finally, these requirements are not meant to prevent a property owner from performing routine maintenance or repair of the exterior architectural features of a historic property, as long as that work does not amount to a material change in the property’s outer appearance.

        History: Section enacted in 1988; current through 2009 Legislative Session.

        Court action or proceedings to prevent improper changes or illegal acts or conduct. W. Va. Code § 8-26A-8

        This section authorizes a municipal governing body, a county governing body, or a landmarks commission to file suit in a local circuit court to prevent any material change in the appearance of a designated historic landmark or district that a property owner attempts without a certificate of appropriateness.

        History: Section enacted in 1988; current through 2009 Legislative Session.

        Violations of this article; penalties. W. Va. Code § 8-26A-9

        Anyone who violates a local ordinance or commission determination can be punished by either: (1) a fine of up to ten percent of the total cost of the project requiring a certificate of appropriateness, or $500, whichever is more; (2) a prison sentence of up to six months; or (3) both a fine and prison sentence.

        History: Section enacted in 1988; current through 2009 Legislative Session.

        Notice to county assessor of designation of historic district. W. Va. Code § 8-26A-10

        Whenever a landmark commission establishes a historic district, it must notify the county assessor of any county in which a part of the district is located. The assessor must consider the district designation when he or she assesses the properties within the district.

        History: Section enacted in 1988; current through 2009 Legislative Session.

        Assistance of state agencies; coordination; annual reports. W. Va. Code § 8-26A-11

        A local landmark commission can request assistance from state agencies at any time. In addition, landmark commissions must cooperate and coordinate their activities with the West Virginia Historical Society and the West Virginia Department of Culture and History in order to create a unified program to identify, study, preserve, and protect all historic buildings, structures and sites within the state. To help with this process, each landmark commission must submit annual reports on its activities to the Department of Culture and History.

        History: Section enacted in 1988; current through 2009 Legislative Session.

      6. How do county and municipal governments oversee cemetery property?

        General powers of every municipality and the governing body thereof. W. Va. Code § 8-12-5

        This section includes an extensive list of general powers held by municipalities and local governing bodies. Included in this list is the power to acquire—by purchase, condemnation, or other method—land within the municipality to use as a public cemetery. Upon establishing a public cemetery, the governing body can proceed to operate and maintain it. This includes regulating the terms and conditions for burials like price. Furthermore, a governing body can acquire an existing cemetery and operate it for the public.

        History: Section enacted in 1882; current through 2009 Legislative Session.

        Permits for construction and alteration. W. Va. Code § 8-12-14

        Each local governing body has plenary power to require permits for any construction, repair, or alteration of a building or structure on property regulated by state or local law. Governing bodies cannot, however, require that state or local government agencies get permits before similar work. This permit requirement would likely extend to property within public cemeteries created under W. Va. Code § 8-12-5.

        History: Section enacted in 1937; current through 2009 Legislative Session.

        Sale, lease or disposition of other municipal property. W. Va. Code § 8-12-18

        This section authorizes municipalities to sell municipal property, which would likely include public cemetery property. If a municipality wants to sell property worth more than $1,000, it must do so through a public auction. The municipality’s governing body is responsible for drafting a notice that includes: the time and place of the auction; the terms of the sale; and a brief description of the property to be sold. The governing body must publish this notice in a local newspaper (following requirements in W. Va. Code § 59-3-2 for Class II legal advertisements).

        History: Section enacted in 1969; current through 2009 Legislative Session.

        Appointment of new trustees for burial grounds. W. Va. Code § 35-5-1

        This section applies to burial grounds that were formerly maintained by a now-defunct: church, religious sect, society, congregation or denomination; or benevolent, fraternal, patriotic, literary, temperance, or charitable society, order, lodge or association. For these burial grounds, a group of five or more people who have relatives interred there can apply to the local governing body to appoint new trustees. The governing body will then appoint five trustees who are then responsible for overseeing the burial ground.

        History: Section enacted in 1897; current through 2009 Legislative Session.

      7. What are the powers and duties of the state historical commission?

        Division of Culture and History continued; sections and commissions; purposes; definitions; effective date. W. Va. Code § 29-1-1

        This section provides general details about the West Virginia Division of Culture and History. First, the division consists of five sections and two citizens’ commissions. The five sections are: (1) the Arts Section; (2) the Archives and History Section; (3) the Museums Section; (4) the Historic Preservation Section; and (5) the Administrative Section. The two citizens’ commissions are the Commission on the Arts and the Commission on Archives and History.

        Second, the division is led by the Commissioner of Culture and History, who the Governor nominates and then appoints with advice and consent of the State Senate. To be qualified, a candidate must have: (1) a bachelor’s degree in one of the fine arts, social sciences, library science or a related field; or (2) four years’ work experience in museum management, public administration, arts administration, history administration, or a related field.

        The commissioner has the following duties: (1) to advance, foster, promote, identify, register, acquire, mark and care for historical, prehistorical, archaeological and significant architectural sites, structures and objects in the state; (2) to encourage the use of loans, subsidies, grants, and other economic incentives to promote preservation of significant sites, structures, and objects; (3) to coordinate all cultural, historical and artistic activities in state government and at state-owned facilities; (4) to acquire, preserve and classify books, documents, records and memorabilia of historical interest or importance; and (5) in general, to do all things necessary or convenient to preserve and advance the culture of the state.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        General powers of commissioner. W. Va. Code § 29-1-2

        This section lists the various powers of the Commissioner of the Division of Culture and History. First, the commissioner can assign and allocate space in all of the division’s buildings, which includes the West Virginia Science and Culture Center. The commissioner can also issue rules and assign fees for use and occupancy of division facilities.

        Second, the commissioner is responsible for coordinating the operations of the various sections and commissions under the Division of Culture and History. This includes assigning work to the sections and commissions in the most efficient way that the commissioner thinks possible. In addition, the commissioner must try to centralize to the greatest extent possible services such as bookkeeping, personnel, purchasing, printing, duplicating, and binding. Moreover, the commissioner can establish any additional sections that he or she thinks appropriate, and appoint directors for those sections. The commissioner also can appoint the Director of the West Virginia Science and Culture Center.

        Third, the commissioner acts as the state historic preservation officer, and chairs the Capitol Building Commission.

        Fourth, the commissioner is responsible for preparing an annual proposed budget after consulting with the section directors and the commissions. The commissioner submits this proposed budget to the governor. The commissioner also must approve in writing all contracts, agreements, or expenditures of state funds.

        Fifth, the commissioner must prepare and submit to the governor an annual report as required by W. Va. Code § 5-1-20. This report will detail the activities of each section and commission under the Division of Culture and History.

        Finally, the commissioner has the power to employ all personnel for the various sections. He or she also must supply support services to the commissions and to the Governor’s Mansion Advisory Committee.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        NOTE: Section 29-1-3 describes the Commission on the Arts and section 29-1-4 describes the Arts Section.

        Archives and History Commission. W. Va. Code § 29-1-5

        This section gives the Archives and History Commission the following powers: (1) to advise the commissioner and the directors of the Archives and History Section, the Historic Preservation Section, and the Museums Section; (2) to approve and distribute federal and state funding awards relating to the purposes of those three sections; (3) to request, accept, and spend federal funds to accomplish the purposes of those three sections in circumstances when the commissioner or the section director is prohibited from doing so; (4) to encourage and promote the activities of the three sections; (5) to approve rules and regulations proposed by the directors of the three sections; (6) to advise and consent to the commissioner’s appointment of section directors; and (7) to review and approve nominations to the state and national registers of historic places.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Archives and History Section; director. W. Va. Code § 29-1-6

        The Archives and History Section has the following duties: (1) to locate, survey, investigate, register, identify, preserve, protect, restore and recommend to the commissioner for acquisition documents and records having historical, evidential, administrative and/or legal value relating to the state of West Virginia and the territory included in the state from the earliest times to the present; (2) to conduct a continuing survey and study throughout the state to develop a state plan to determine the needs and priorities for preserving important documents and records; (3) to direct, protect, preserve, study and disseminate information on the documents and records; (4) to provide matching grants to state and local government agencies to protect and preserve the documents and records; (5) to operate and maintain a state library to preserve all public records, state papers, documents and reports of all three branches of state government including all boards, commissions, departments and agencies as well as any other private or public papers, books or documents of peculiar or historic interest or significance; (6) to designate appropriate monuments, tablets or markers for historic, architectural and scenic sites within the state and to arrange for the purchase, replacement, care of and maintenance of those objects; (7) to edit and publish a historical journal devoted to the history, biography, bibliography and genealogy of West Virginia; and (8) to perform any other duties that the commissioner assigns to the section.

        The Commissioner of the Division of Culture and History appoints the Director of the Archives and History Section with the advice and consent of the Archives and History Commission. To be eligible to be appointed as director, a candidate must have: (1) a graduate degree in one of the social sciences, or equivalent training and experience in the field of West Virginia history, history, or in records, library or archives management; and (2) three years’ experience in administration in the field of West Virginia history, history, or in records, library or archives management.

        The director serves as the state historian and archivist. The director also can, with the commissioner’s approval, establish professional positions within the section and staff them with qualified candidates to help carry out the section’s duties. At a minimum, the director should create positions for the following professions: historian, archivist, librarian, technician, and clerk. Finally, the director can adopt any rules or regulations necessary to carry out the section’s responsibilities.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Museums Section; director. W. Va. Code § 29-1-7

        The Museums Section has the following duties: (1) to locate, survey, investigate, register, identify, preserve, protect, restore and recommend to the commissioner for acquisition historic objects worthy of preservation, relating to the state of West Virginia and the territory included in the state from the earliest times to the present; (2) to conduct a continuing survey and study throughout the state to develop a state plan to determine the needs and priorities for preserving historic objects; (3) to direct, protect, excavate, preserve, and study historic objects; (4) to preserve and protect Civil War memorabilia, including all battle or regimental flags borne by West Virginians; (5) to operate and maintain a state museum, and coordinate activities with other museums across the state; and (6) to perform any other duties that the commissioner assigns to the section.

        The Commissioner of the Division of Culture and History appoints the Director of the Museums Section with the advice and consent of the Archives and History Commission. To be eligible to be appointed as director, a candidate must have: (1) a graduate degree in one of the social sciences, or equivalent training and experience in the field of West Virginia history, history, archaeology, or museum administration; and (2) three years’ experience in administration in the field of West Virginia history, history, archaeology, or museum management.

        The director can, with the commissioner’s approval, establish professional positions within the section and staff them with qualified candidates to help carry out the section’s duties. At a minimum, the director should create positions for the following professions: curator, technician, and clerk. Finally, the director can adopt any rules or regulations necessary to carry out the section’s responsibilities.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Historic Preservation Section; director. W. Va. Code § 29-1-8

        The Historic Preservation Section has the following duties: (1) to locate, survey, investigate, register, identify, preserve, protect, restore and recommend to the commissioner for acquisition any historic, archeological, or cultural sites, and structures or objects worthy of preservation such as human skeletal remains, graves, grave artifacts and grave markers; (2) to conduct a continuing survey and study throughout the state to develop a state plan to determine the needs and priorities for preserving such sites and objects; (3) to direct, protect, excavate, preserve, and study such sites and objects; (4) to review and monitor all historic preservation projects that are funded, licensed or otherwise assisted by the state; (5) to carry out the requirements under the National Historic Preservation Act of 1966; (6) to develop and maintain a West Virginia State Register of Historic Places for use as a planning tool for state and local government; (7) to cooperate with state and federal agencies in archaeological work; (8) to issue permits for the excavation or removal of human skeletal remains, grave artifacts and grave markers; (9) to issue permits for the excavation of archaeological, prehistoric and historic sites; and (10) to perform any other duties that the commissioner assigns to the section.

        The Commissioner of the Division of Culture and History appoints the Director of the Historic Preservation Section with the advice and consent of the Archives and History Commission. To be eligible to be appointed as director, a candidate must have: (1) a graduate degree in one of the social sciences, or equivalent training and experience in the field of historic preservation, archaeology, West Virginia history, or history; and (2) three years’ experience in administration in the field of historic preservation, West Virginia history, history, or archaeology.

        The director serves as the State Historic Preservation Officer. The director also can, with the commissioner’s approval, establish professional positions within the section and staff them with qualified candidates to help carry out the section’s duties. At a minimum, the director should create positions for the following professions: historian, architectural historian, a structural historian who specializes in historical preservation, an archaeologist specializing in historic and prehistoric archaeology, and any necessary technicians and clerks.

        Finally, the director can adopt any rules or regulations concerning: (1) the professional policies and functions of the Historic Preservation Section; (2) the review of and, when required, issuance of permits for all historic preservation projects that the state funds, licenses or otherwise assists; (3) the establishment and maintenance of a West Virginia State Register of Historic Places, including the criteria for eligibility of properties for the State Register, procedures for nominations to the State Register, and protection of nominated and listed properties; and (4) the compliance of historic structures with existing state fire and building codes.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Administrative Section; director. W. Va. Code § 29-1-9

        The purpose of the Administrative Section is to provide centralized support to all other sections of the Division of Culture and History. The commissioner is responsible for appointing a Director of the Administration Section. To be eligible to serve as director, a candidate must have either: (1) a bachelor’s degree and two years’ experience in responsible positions involving office management, public administration, budget and fiscal administration; or (2) six years’ experience in those fields. The director can, with the commissioner’s approval, establish professional positions within the section and staff them with qualified candidates to help carry out the section’s duties.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Power to accept and receive funds; power to apply for grants; disbursal of funds; restrictions on expenditure; disposition of funds heretofore received or appropriated. W. Va. Code § 29-1-11

        The Division of Culture and History, through its commissioner, can accept and receive grants, appropriations, gifts, bequests and funds from any public or private source. Furthermore, the division’s commissioner and commissions can apply for grants from the federal government, private foundations and any other source. The division must deposit all funds that it receives into the State Treasury. From there, the State Auditor can disburse the funds after he or she receives a requisition that is signed by the commissioner, or the Governor in an emergency.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Publication of materials; agreements. W. Va. Code § 29-1-12

        The Division of Culture and History has the responsibility to publish material of prehistorical, historical, archaeological, architectural or cultural interest. The division can sell these publications—as well as postcards and other items of interest—at the state museum or any other state site or special event. Finally, the division has the right to enter into agreements with responsible individuals, private historical, archaeological, architectural or cultural associations, or any agency of the federal, state or local government to raise money to fund the division’s work.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Land; control and disposal; rules and regulations. W. Va. Code § 29-1-13

        The Division of Culture and History is responsible for controlling and administering all of the historic land that it owns, although the title to that land is held by the public land corporation of West Virginia. As part of the division’s authority, its commissioner can sell or dispose of any real or personal property that he or she decides does not have enough prehistorical, historical, archaeological, architectural, or cultural value for the division to keep it. Furthermore, the commissioner can make any necessary rules and regulations to manage the division’s property holdings.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      8. How does the state historical commission register or include historical property?

        Historic Preservation Section; director. W. Va. Code § 29-1-8

        Among the Historic Preservation Section’s duties is the duty to develop and maintain a West Virginia State Register of Historic Places for use as a planning tool for state and local government. In addition, the section director can adopt any necessary rules or regulations concerning the criteria for eligibility of properties for the State Register, procedures for nominations to the State Register, and protection of nominated and listed properties.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Archives and History Commission. W. Va. Code § 29-1-5

        The Archives and History Commission has the duty to review and approve nominations to the state and national registers of historic places.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      9. What are the powers and duties of the state archaeological commission?

        Transfer of powers and duties; existing contracts and obligations. W. Va. Code § 29-1-1A

        This section transfers the powers and duties of the West Virginia Antiquities Commission to the Division of Culture and History.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Historic Preservation Section; director. W. Va. Code § 29-1-8

        The Historic Preservation Section has following duties relating to state archaeology: (1) to locate, survey, investigate, register, identify, preserve, protect, restore and recommend to the commissioner for acquisition historic, archeological, or cultural sites, and structures or objects worthy of preservation such as human skeletal remains, graves, grave artifacts and grave markers; (2) to conduct a continuing survey and study throughout the state to develop a state plan to determine the needs and priorities for preserving such sites and objects; (3) to direct, protect, excavate, preserve, and study such sites and objects; (4) to cooperate with state and federal agencies in archaeological work; (5) to issue permits for the excavation or removal of human skeletal remains, grave artifacts and grave markers; and (6) to issue permits for the excavation of archaeological, prehistoric and historic sites.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      10. How is the rehabilitation and preservation of historic property conducted?

        NOTE: Different organizations on the state and local levels are responsible for overseeing the rehabilitation and preservation of historic property. This includes: (1) the Historic Preservation Section on the state level, which has duties described in section 29-1-8; and (2) local landmark commissions, which have duties as described in section 8-26A-7.

        Historic Preservation Section; director. W. Va. Code § 29-1-8

        The Historic Preservation Section has the following duties: (1) to review and monitor all historic preservation projects that are funded, licensed or otherwise assisted by the state; (2) to carry out the requirements under the National Historic Preservation Act of 1966; (3) to issue permits for the excavation or removal of human skeletal remains, grave artifacts and grave markers; and (4) to issue permits for the excavation of archaeological, prehistoric and historic sites.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Certificate of appropriateness; scope of review; standards of review; review procedures; variances, appeals. W. Va. Code § 8-26A-7

        This section controls when a municipality or county passes an ordinance to create a local landmark commission, and in that ordinance gives the commission the authority to issue certificates of appropriateness. These certificates will regulate new construction, alteration, removal, or demolition of buildings, sites and structures within a historic landmark or district. A commission authorized by a municipality or county to issue these certificates has a plenary power to do so, provided that the commission obeys these following requirements.

        First, an owner of property within a historic landmark or district must submit an application to the commission for a certificate of appropriateness before beginning work that will significantly alter the exterior architectural features of a building or structure on that property. A property owner must also submit an application before excavating or moving earth on or around earthworks within the landmark or district that are of historical or archaeological significance. Furthermore, the commission can request that an applicant submit any plans, elevations, specifications, drawings, photographs, or other information that the commission thinks would be reasonably necessary for it to decide whether or not to grant a certificate of appropriateness.

        A landmark commission must hold a public hearing to discuss every application for a certificate that it receives. Before the hearing, the commission must notify the public about it in three ways. First, the commission must publish a notice with the hearing’s date and time in a local newspaper at least seven days prior. Second, the commission must post a notice on or near the main entrance of the room where the commission usually meets. Third, the commission must take necessary action to inform any property owners who are affected by the application. At the hearing, the applicant and any affected property owners will have an opportunity to be heard.

        After the hearing, the commission should review all relevant information in making its determination. The commission has 45 days after an application is submitted to issue a determination. In making a determination, the commission should consider the following factors: (1) the historical and architectural integrity and significance; (2) the architectural style; (3) the design, arrangement, texture and materials of exterior architectural features; and (4) the relationship and general compatibility of the proposed changes to the historical value, exterior architectural style, and pertinent features of nearby structures.

        The commission should approve an application if it determines that a project is appropriate under the four factors above. If the commission decides to approve an application, then it shows its approval by issuing a certificate of appropriateness.

        If the commission rejects an application, it must send the applicant a record of the rejection, along with a written explanation of the commission’s reasons. Within the explanation, the commission may choose to include recommendations about features of the proposal’s design, arrangement, texture, or material. The applicant can then modify his or her plans and resubmit them to the commission. If the commission rejects an application for a project that would have required a building permit, then the building inspector is prohibited from issuing such a permit to the applicant. Moreover, any person who is adversely affected by the commission’s decision to approve or reject an application can file an appeal in the circuit court of the county where the historic property is located.

        If the commission decides that it is necessary to acquire a unique historic property in order to preserve it, then the commission can do so after getting the local governing body’s approval. With the approval, the commission can acquire the historic property by gift, purchase, or exchange.

        If the enforcement of the requirements in this section would unduly burden a private property owner, then the commission can decide not to strictly enforce them. The commission can do this so long as it still upholds the section’s general purpose and intent; to maintain the architectural and historical integrity of unique buildings and districts.

        The commission must keep records of all the applications that it receives for certificates of appropriateness, and of all its proceedings.

        Finally, these requirements are not meant to prevent a property owner from performing routine maintenance or repair of the exterior architectural features of a historic property, as long as that work does not amount to a material change in the property’s outer appearance.

        History: Section enacted in 1988; current through 2009 Legislative Session.

      11. What specific historic or cultural properties are regulated by the state’s historical commission?

        Division of Culture and History continued. W. Va. Code § 29-1-1

        The Division of Culture and History is responsible for controlling and operating the West Virginia Science and Culture Center, the West Virginia Independence Hall in Wheeling, and Camp Washington Carver in Fayette County. The division also is responsible for coordinating all visitor tour guide activities within the State Capitol Building at Charleston.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Washington-Carver Camp; prohibition of disposition or removal of minerals without authorization by the Legislature. W. Va. Code § 29-1-14

        Among the division’s duties with respect to the Washington-Carver Camp is to develop such cultural, artistic, humanistic and educational programs at the camp as will serve and benefit the citizens of West Virginia.

        History: Section enacted in 1991; current through 2009 Legislative Session.

  5. Special Funding Sources

    1. Special Funding for Protection and Preservation of Burials

      1. How is the income from cemetery land to be used and dispersed in this state?

        NOTE: Section 35-5-3 describes the uses for income from permanent endowment funds of cemetery associations. Section 35-5-6 describes the uses for income from express perpetual care trusts. Section 35-5A-5 describes the possible uses for permanent endowment care funds of perpetual care cemeteries.

        Permanent endowment funds for cemetery associations; how created. W. Va. Code § 35-5-3

        Cemetery associations can create permanent endowment funds by depositing in them all funds that the associations gain from sources such as donations, gifts, and bequests. Cemetery associations must spend the income from permanent endowment funds each year to beautify and maintain the cemeteries that the associations operate.

        History: Section enacted in 1929; current through 2009 Legislative Session.

        Express trusts for perpetual care of cemeteries or burial lots. W. Va. Code § 35-5-6

        Private citizens can create express trusts for the perpetual care, preservation, maintenance, improvement and/or embellishment of any public or private cemetery or burial lot. Trusts created for burial lots can be used to pay for: (1) the erection, repair, preservation and/or removal of any structure or object such as mausoleums, tombs, monuments, gravestones, fences, railings, and walks; or (2) the planting, trimming, watering and/or removing of any tree, shrub or other plant. If the amount of income from the express trust is more than is required for this type of work, the trust’s trustee can transfer excess income to the cemetery’s general maintenance fund.

        History: Section enacted in 1935; current through 2009 Legislative Session.

        Trustee of the permanent endowment care funds. W. Va. Code § 35-5A-5

        This section describes the requirements for permanent endowment care funds for perpetual care cemeteries . The income that the trustee gains for the fund must be paid over to the cemetery operator semiannually, to be used solely for the maintenance, improvement and preservation of the cemetery’s grounds, lots, buildings, equipment, records, statuary, and other real and personal property.

        The trustee must prepare an annual report that details all of the permanent endowment care fund’s assets and investments. The cemetery operator must keep a copy of this annual report at the cemetery offices at all times, and must make it available to inspection at reasonable times upon the request of a cemetery lot owner.

        History: Section enacted in 1973; current through 2009 Legislative Session.

      2. How is a state historic acquisition and preservation fund administered?

        NOTE: Click here to access the Division of Culture and History’s historic preservation grants manual.

        Archives and History Commission. W. Va. Code § 29-1-5

        The Archives and History Commission has the power to approve and distribute federal and state funding awards relating to the purposes of the Historic Preservation Section. The section can use these funds to accomplish any of its purposes, which include preserving historical and archaeological sites, and recommending significant properties for the Commissioner of the Division of Culture and History to acquire.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      3. How are trust funds for the maintenance of cemeteries established and administered?

        NOTE: Sections 35-5-3 to 35-5-5 describe the requirements for the permanent endowment funds of cemetery associations. Section 35-5-6 describes the requirements for express perpetual care trusts that private individuals can establish. Sections 35-5A-3 to 35-5A-8 describe the requirements for permanent endowment care funds of perpetual care cemeteries.

        Permanent endowment funds for cemetery associations; how created. W. Va. Code § 35-5-3

        Cemetery associations can create permanent endowment funds by depositing in them all funds that the associations gain from sources such as donations, gifts, and bequests. Cemetery associations must spend the income from permanent endowment funds each year to beautify and maintain the cemeteries that the associations operate.

        History: Section enacted in 1929; current through 2009 Legislative Session.

        Permanent endowment funds; how invested; report of trustee; disposition of income. W. Va. Code § 35-5-4

        A cemetery association’s board of directors is responsible for appointing a trustee for the association’s permanent endowment fund. The trustee must then invest the principal of the permanent endowment fund in safe securities, subject to the board’s approval.

        In addition, the trustee must submit an annual report to the board of directors that contains the following information: (1) the amount of the permanent endowment fund at the beginning of the year; (2) the names of the donors, if any, for the past year and the amounts they donated; (3) the income derived from the fund during the past year; and (4) the amount on hand at the end of the year. The trustee must also submit a copy to the clerk of the county court for the county where the cemetery association is located.

        Finally, each year the trustee will give the board of directors all the income that the fund generated over the past year. The board can spend the income on cemetery maintenance.

        History: Section enacted in 1929; current through 2009 Legislative Session.

        Permanent endowment funds for cemetery associations -- Trustee therefor; appointment; bond; compensation; vacancy. W. Va. Code § 35-5-5

        The board of directors must appoint a trustee to oversee the permanent endowment fund for a period of two years. The trustee can be either: (1) a responsible businessperson; or (2) a solvent federally insured banking institution. The board of directors can pay the trustee a reasonable amount out of the fund.

        Upon appointment, the trustee must deposit a bond to the cemetery association with a solvent and reliable bonding company that is authorized to do business in West Virginia. The amount of the bond must equal the amount in the fund that the trustee will likely handle. The cemetery association can also alter the bond amount from time to time as the amount in the endowment fund changes. The trustee can pay the premium on the bond from the fund’s income. The trustee is prohibited from serving the fund before giving the appropriate bond, with one exception. Not included in this prohibition is federally insured banking institutions authorized to exercise trust powers under W. Va. Code § 31A-4-14, unless there are special circumstances as described in W. Va. Code § 31A-4-18.

        Finally, if there is a vacancy in the trusteeship, or the board of directors has failed to appoint a trustee, then a stockholder of the association, or some other interested citizen can petition the local circuit court to appoint a qualified trustee instead.

        History: Section enacted in 1929; current through 2009 Legislative Session.

        Express trusts for perpetual care of cemeteries or burial lots. W. Va. Code § 35-5-6

        Private citizens can create express trusts for the perpetual care, preservation, maintenance, improvement and/or embellishment of any public or private cemetery or burial lot. Trusts created for burial lots can be used to pay for: (1) the erection, repair, preservation and/or removal of any structure or object such as mausoleums, tombs, monuments, gravestones, fences, railings, and walks; or (2) the planting, trimming, watering and/or removing of any tree, shrub or other plant. If the amount of income from the express trust is more than is required this type of work, the trust’s trustee can transfer excess income to the cemetery’s general maintenance fund.

        The trustee must invest the funds from the trust in the manner described in the document establishing the trust. If the document does not specify the method of investment, then the trustee must do so in keeping with West Virginia law.

        History: Section enacted in 1935; current through 2009 Legislative Session.

        Establishment of permanent endowment care funds. W. Va. Code § 35-5A-3

        Anyone who wants to organize and operate a perpetual care cemetery in West Virginia must first establish a permanent endowment care fund . The fund must be segregated from all of the cemetery operator’s other assets, and must maintain a minimum principal of $10,000.

        Anyone already operating a perpetual care cemetery as of July 1, 1973 must: establish a permanent endowment fund; make regular deposits to it as required under section 35-5A-4; and arrange for the fund to be administered as required under section 35-5A-5.

        History: Section enacted in 1973; current through 2009 Legislative Session.

        Additional funding of permanent endowment care funds. W. Va. Code § 35-5A-4

        The operator of a perpetual care cemetery must continue to deposit portions of sales proceeds into the permanent endowment care fund. This includes: (1) ten dollars, or ten percent of the gross sales proceeds received from the sale of each burial right or lot, whichever is greater; and (2) five percent of the gross sales proceeds from the sale of any entombment right or columbarium right. The operator must deposit these amounts in the fund not later than 30 days after the month in which the operator received them.

        History: Section enacted in 1973; current through 2009 Legislative Session.

        Trustee of the permanent endowment care funds. W. Va. Code § 35-5A-5

        The operator of a perpetual care cemetery can name as the trustee of its permanent endowment care fund either: (1) a federally insured trust company; or (2) a federally insured banking institution authorized to serve as a trustee under W. Va. Code § 31A-4-14.

        This section also allows a nonresident trust company or nonresident banking institution to serve as trustee for an instate permanent endowment care fund. In this circumstance, the nonresident trust company or banking institution must allow the Secretary of State to serve as its true and lawful attorney-in-fact to accept service of notice and process for any action against it as a trustee. Once the nonresident trust company or banking institution accepts the trustee position, then it automatically agrees that any notice and process served on the Secretary of State has the same legal force and validity as if the company or institution itself was served. Finally, a nonresident trust company or banking institution must give bond before serving as trustee, in the same manner provided in W. Va. Code § 35-5-5.

        In performing its duties to the permanent endowment care fund, the trustee can acquire and retain every kind of property (real, personal, or mixed), and every kind of investment (including bonds, debentures, preferred stocks, and common stocks ). When deciding how to invest the fund’s income, the trustee must follow as a standard what "men of prudence, discretion and intelligence, exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital." The income that the trustee gains for the fund must be paid over to the cemetery operator semiannually, for the operator to use solely for the maintenance, improvement and preservation of the cemetery’s grounds, lots, buildings, equipment, records, statuary, and other real and personal property.

        The trustee must prepare an annual report that details all of the permanent endowment care fund’s assets and investments. The cemetery operator must keep a copy of this annual report at the cemetery offices at all times, and must make it available to inspection at reasonable times upon the request of a cemetery lot owner.

        History: Section enacted in 1973; current through 2009 Legislative Session.

        Cemeteries exempted. W. Va. Code § 35-5A-6

        The requirements in sections 35-5A-3 to 35-5A-5 do not apply to: (1) any private or family cemetery in which lots or spaces are not offered for public sale; or (2) any cemetery which is owned and operated entirely and exclusively by churches, religious societies, established fraternal organizations, municipalities or other subdivisions of the state or a national cemetery.

        History: Section enacted in 1973; current through 2009 Legislative Session.

        Penalties for violation. W. Va. Code § 35-5A-8

        Any person who violates these sections is guilty of a misdemeanor, punishable by a fine of up to $1,000, a prison sentence of up to one year, or both.

        History: Section enacted in 1973; current through 2009 Legislative Session.

      4. How are state historic archives maintained?

        NOTE: The state historic archives are maintained by the Archives and History Section, with oversight by the Archives and History Commission. Click here for information on the Archives and History Section, and here for information on the Archives and History Commission.

      5. How may the state enter into private contracts for recovering and preserving historical artifacts?

        We are unable to locate information relevant to this question at this time.

      6. What funding exists for state historical education efforts?

        Archives and History Commission. W. Va. Code § 29-1-5

        The Archives and History Commission has the power to approve and distribute federal and state funding awards to the Archives and History Section, the Museums Section, and the Historic Preservation Section. Any of these sections could use those funds for historical education efforts related to their respective missions.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      7. What funding exists for state museums’ scientific services?

        Archives and History Commission. W. Va. Code § 29-1-5

        The Archives and History Commission has the power to approve and distribute federal and state funding awards to the Archives and History Section, the Museums Section, and the Historic Preservation Section. The Museums Section specifically could use portions of its awards to fund scientific research at the state museum.

        History: Section enacted in 1991; current through 2009 Legislative Session.

    2. Special Funding for Public Lands

      1. What special funding sources are there for protection and preservation of burials on public lands?

        Historic Preservation Section; director. W. Va. Code § 29-1-8

        The Historic Preservation Section has the duty to protect and preserve structures or objects worthy of preservation such as human skeletal remains, graves, grave artifacts and grave markers. As part of this duty, the section could decide to spend some of the funds that it receives from the Archives and History Commission on projects to protect or preserve burials on public land.

        History: Section enacted in 1991; current through 2009 Legislative Session.

    3. Special Funding for Private Lands

      1. What special funding sources are there for protection and preservation of burials on private lands?

        Historic Preservation Section; director. W. Va. Code § 29-1-8

        The Historic Preservation Section has the duty to protect and preserve structures or objects worthy of preservation such as human skeletal remains, graves, grave artifacts and grave markers. As part of this duty, the section could decide to spend some of the funds that it receives from the Archives and History Commission on projects to protect or preserve burials on private land.

        History: Section enacted in 1991; current through 2009 Legislative Session.

  6. State Recognition of Constituent Groups

    1. Laws Recognizing or Acknowledging Constituent Groups

      1. What laws are there recognizing or acknowledging constituent groups?

        Special memorial days. W. Va. Code § 2-2-1A

        This section establishes the week beginning with the Sunday before Thanksgiving as a special memorial week known as Native American Indian Heritage Week.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Commission on the Arts. W. Va. Code § 29-1-3

        The Commission on the Arts of the Division of Culture and History is composed of fifteen members who the Governor appoints. The members must fairly represent: both sexes; the ethnic and cultural diversity of the state; and the geographic diversity of the state.

        History: Section enacted in 1991; current through 2009 Legislative Session.

        Archives and History Commission. W. Va. Code § 29-1-5

        The Archives and History Commission of the Division of Culture and History is composed of thirteen members who the Governor appoints. The members must fairly represent: both sexes; the ethnic and cultural diversity of the state; and the geographic diversity of the state.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      2. What tribes are recognized by the state?

        At this time we are unable to locate any tribes recognized by the state of West Virginia.

      3. Are the state-recognized tribes different from the federally-recognized tribes in the state?

        At this time we are unable to locate any federally-recognized tribes that exist in the state of West Virginia.

    2. Compliance Laws

      1. What laws are there related to compliance with recognition or acknowledgment of constituent groups?

        We are unable to locate information relevant to this question at this time.

    3. Regulatory Laws

      1. What laws are there related to regulation of recognition or acknowledgment of constituent groups?

        We are unable to locate information relevant to this question at this time.

    4. Decision-Making Authorities

      1. What notice and consultation with tribes is required for discoveries of Native American human remains, burial places, and funerary objects?

        Protection of grave markers; permits for excavation and removal. W. Va. Code § 29-1-8A

        It is unlawful to excavate or remove Native American human remains or funerary objects from historical burial sites without a permit from the Director of Natural Resources. However, two groups of people are exempted from needing to get a permit: (1) archaeologists complying with the Archaeological Resources Protection Act (16 U.S.C. § 470(aa)); and (2) people working on projects that comply with section 106 of the National Historic Preservation Act.

        The following are procedures for obtaining a permit to remove Native American human remains or funerary objects from burial places. First, the Director of Historic Preservation must create and chair an ad hoc committee to develop the permit’s terms and conditions. The committee must be composed of the chairperson plus six to eight members who represent: the Council for West Virginia Archaeology; the West Virginia Archaeological Society; and known or presumed lineal descendants, preferably those who are culturally affiliated with Native American tribes that existed in the geographic area that is now West Virginia.

        History: Section enacted in 1991; current through 2009 Legislative Session.

      2. How are Indian sacred sites regulated?

        We are unable to locate information relevant to this question at this time.

      3. Is there a state Indian Affairs Commission or equivalent?

        At this time we are unable to locate information about an Indian Affairs Commission or equivalent in the state of West Virginia.

      4. How is the state Indian Affairs Commission or equivalent composed?

        At this time we are unable to locate information about an Indian Affairs Commission or equivalent in the state of West Virginia.

      5. What are the powers and duties of the state Indian Affairs Commission?

        At this time we are unable to locate information about an Indian Affairs Commission or equivalent in the state of West Virginia.

      6. Is there a state Indian cultural heritage commission?

        NOTE: This link provides information about Native American cultural heritage.

    5. Special Funding

      1. What special funding sources are there for state recognition or acknowledgment of constituent groups?

        We are unable to locate information relevant to this question at this time.

  7. Definitions

    An "appurtenant easement" is an easement created to benefit another tract of land, the use of easement being incident to the ownership of that tract. Black’s Law Dictionary 586 (9th ed. 2009).

    A "bond" is a written promise to pay money to do some act if certain circumstances occur or a certain time elapses. Black’s Law Dictionary 200 (9th ed. 2009).

    "Authorized person" means: (A) a family member, close friend or descendant of a deceased person; (B) a cemetery plot owner; or (C) a person engaged in genealogy research. W. Va. Code § 37-13A-2.

    "Cave" means any naturally occurring subterranean cavity. The word "cave" includes or is synonymous with cavern, pit, pothole, well, sinkhole and grotto. W. Va. Code § 20-7A-1.

    "Cemetery company contract" means a contract for the sale of real and personal property, goods or services used in connection with interring or disposing of the remains or commemorating the memory of a deceased human being. W. Va. Code § 35-5-7.

    "Cemetery company" or "seller" means any person, partnership, firm or corporation engaged in the business of operating a cemetery or selling property, goods or services used in connection with interring or disposing of the remains or commemorating the memory of a deceased human being, where delivery of the property or goods or performance of the service may be delayed later than one hundred twenty days after receipt of the initial payment on account of such sale. Such property, goods or services include, but are not limited to, burial vaults, mausoleum crypts, lawn crypts, memorials, marker bases and opening and closing and/or interment services, but do not include graves or incidental additions such as dates, scrolls or other supplementary matter representing not more than ten percent of the total contract price. W. Va. Code § 35-5B-1.

    "Chattel" is movable or transferable property; personal property. Black’s Law Dictionary 268 (9th ed. 2009).

    "Common stock" is a class of stock entitling the holder to vote on corporate matters, to receive dividends after other claims and dividends have been paid (esp[ecially] to preferred shareholders), and to share in assets upon liquidation. Black’s Law Dictionary 1552 (9th ed. 2009).

    "Compliance agent" means a natural person who owns or is employed by a cemetery company to assure the compliance of the cemetery company with the provisions of this article. W. Va. Code § 35-5B-1.

    A "condition precedent" is an act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises. If the condition does not occur and is not excused, the promised performance need not be rendered. Black’s Law Dictionary 334 (9th ed. 2009).

    A "conservation easement" is a nonpossessory interest of a holder in real property, whether appurtenant or in gross, imposing limitations or affirmative obligations, the purposes of which include, but are not limited to, retaining or protecting for the public benefit the natural, scenic or open-space values of real property; assuring its availability for agricultural, forest, recreational or open-space use; protecting natural resources and wildlife; maintaining or enhancing land, air or water quality; or preserving the historical, architectural, archaeological or cultural aspects of real property. W. Va. Code § 20-12-3.

    A "contingent interest" is an interest that the holder may enjoy only upon the occurrence of a condition precedent. Black’s Law Dictionary 885 (9th ed. 2009).

    A "conveyance" means any motor vehicle, vessel, railroad car, railroad engine, trailer, aircraft or sleeping car. W. Va. Code § 61-3B-1.

    A "covenant" is a formal agreement or promise, usu[ally] in a contract or deed, to do or not do a particular act. Black’s Law Dictionary 419 (9th ed. 2009).

    A "debenture" is a debt secured only by the debtor’s earning power, not by a lien on any specific asset. Black’s Law Dictionary 460 (9th ed. 2009).

    "Desecrate" means defacing, damaging or otherwise physically mistreating in a way that a reasonable person knows will outrage the sensibilities of persons likely to observe or discover his or her actions. W. Va. Code § 61-8-14.

    "Disturb" means the excavating, removing, exposing, defacing, mutilating, destroying, molesting, or desecrating in any way of human skeletal remains, unmarked graves, grave artifacts or grave markers. W. Va. Code § 29-1-8A.

    An "easement" is an interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road). Black’s Law Dictionary 585-86 (9th ed. 2009).

    "Egress" is the act of going out or leaving. Black’s Law Dictionary 592 (9th ed. 2009).

    "Eminent domain" is the inherent power of a governmental entity to take privately owned property, esp[ecially] land, and convert it to public use, subject to reasonable compensation for the taking. Black’s Law Dictionary 601 (9th ed. 2009).

    An "equitable servitude" is a private agreement, usu[ally] in a deed or lease, that restricts the use or occupancy of real property, esp[ecially] by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put. Black’s Law Dictionary 421 (9th ed. 2009).

    "Ex officio" means by virtue or because of an office. Black’s Law Dictionary657 (9th ed. 2009).

    An "executory interest" is a future interest, held by a third person, that either cuts off another’s interest or begins after the natural termination of a preceding estate. Black’s Law Dictionary 652 (9th ed. 2009).

    "Exterior architectural features" include the architectural character and general composition of the exterior of a structure, including, but not limited to, the kind, color and texture of the building material and the type, design and character of all windows, doors, light fixtures, signs, other appurtenant elements and natural features when they are integral to the significance of the site, all of which are subject to public view from a public street, way or place. W. Va. Code § 8-26A-2.

    A "fee simple" is an interest in land that, being the broadest property interest allowed by law, endures until the current holder dies without heirs, esp[ecially], a fee simple absolute. Black’s Law Dictionary 691 (9th ed. 2009).

    A "fiduciary" is a person who must exercise a high standard of care in managing another’s money or property. Black’s Law Dictionary 702 (9th ed. 2009).

    "Final disposition" means the burial, interment, cremation, removal from the state, or other authorized disposition of a dead body or fetus. W. Va. Code § 16-5-1.

    A "freehold" is an estate in land held in fee simple, in fee tail, or for term of life; any real-property interest that is or may become possessory. Black’s Law Dictionary 736 (9th ed. 2009).

    A "general power of appointment" is a power of appointment by which the donee can appoint—that is, dispose of the donor’s property—in favor of anyone at all, including oneself or one’s own estate; esp[ecially], a power that authorizes the alienation of a fee to any alienee. Black’s Law Dictionary 1290 (9th ed. 2009).

    "Governmental subdivision" means any county commission or municipality. W. Va. Code § 27-13A-2.

    A "grant" is a formal transfer of real property. Black’s Law Dictionary 768 (9th ed. 2009).

    A "grantor" is one who conveys property to another. Black’s Law Dictionary 769 (9th ed. 2009).

    "Grave artifact" means any items of human manufacture or use that are associated with the human skeletal remains in a grave. W. Va. Code § 29-1-8A.

    "Grave marker" means any tomb, monument, stone, ornament, mound, or other item of human manufacture that is associated with a grave. W. Va. Code § 29-1-8A.

    A "guardian ad litem" is a guardian, usu[ally] a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party. Black’s Law Dictionary 774 (9th ed. 2009).

    "Historic district" is a geographically definable area possessing a significant concentration, linkage or continuity of sites buildings, structures or objects united historically or aesthetically by plan or physical development. W. Va. Code § 8-26A-2.

    "Historic landmark" is a site, building, structure or object designated as a "Landmark" either on a national, state or local register. W. Va. Code § 8-26A-2.

    "Historic site" is the location of a significant event, a prehistoric or historic occupation or activity, or a building or structure, whether standing, ruined or vanished, where the location itself possesses historical, cultural or archaeological value regardless of the value of any existing structure. W. Va. Code § 8-26A-2.

    "Holder" means: (1) A governmental body empowered to hold an interest in real property under the laws of this state or the United States; or (2) A charitable corporation, charitable association or charitable trust registered with the secretary of state and exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. Section 501(c)(3), or other federal or state statutes or rules, the purposes or powers of which include retaining or protecting the natural, scenic, agricultural or open-space values of real property; assuring the availability of real property for agricultural, forest, recreational or open-space use; protecting natural resources and wildlife; maintaining or enhancing land, air or water quality; or preserving the historical, architectural, archaeological or cultural aspects of real property. W. Va. Code § 20-12-3.

    "Human skeletal remains" means the bones, teeth, hair or tissue of a deceased human body. W. Va. Code § 29-1-8A.

    "Ingress" means the act of entering. Black’s Law Dictionary 853 (9th ed. 2009).

    "Larceny" is the unlawful taking and carrying away of someone else’s personal property with the intent to deprive the possessor of it permanently. Black’s Law Dictionary 959 (9th ed. 2009).

    A "lien" is a legal right or interest that a creditor has in another’s property, lasting usu[ally] until a debt or duty that it secures is satisfied. Black’s Law Dictionary 1006 (9th ed. 2009).

    "Native American tribe" means any Indian tribe, band, nation, or organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. W. Va. Code § 29-1-8A.

    A "negative easement" is an easement that prohibits the servient-estate owner from doing something, such as building an obstruction. Black’s Law Dictionary 587 (9th ed. 2009).

    "Permanent endowment care fund" means a fund held in an irrevocable trust separate and apart from all other assets of the cemetery and dedicated for the exclusive use of perpetual care and maintenance of such cemetery. W. Va. Code § 35-5A-1.

    "Perpetual care cemetery" means a cemetery which advertises or represents to the public in any manner that it provides perpetual care or maintenance for burial grounds, mausoleums or columbaria and the fixtures attached thereto or which sells or offers to sell any interment right which is to be perpetually cared for or maintained. W. Va. Code § 35-5A-1.

    "Person" means any individual, partnership, firm, society, association, trust, corporation, other business entity or any agency, unit or instrumentality of federal, state or local government. W. Va. Code § 22-3-3.

    A "plenary power" is a power that is broadly construed. Black’s Law Dictionary 1288 (9th ed. 2009).

    "Preferred stock" is a class of stock giving its holder a preferential claim to dividends and to corporate assets upon liquidation but that usu[ally] carries not voting rights. Black’s Law Dictionary 1553 (9th ed. 2009).

    "Preservation easement" means a nonpossessory interest in an historical building. W. Va. Code § 20-12-3.

    "Privity of contract" is the relationship between the parties to a contract, allowing them to sue each other but preventing a third party from doing so. Black’s Law Dictionary 1320 (9th ed. 2009).

    "Privity of estate" is a mutual or successive relationship to the same right in property, as between grantor and grantee or landlord and tenant. Black’s Law Dictionary 1320 (9th ed. 2009).

    "Pro rata" means proportionately; according to an exact rate, measure, or interest. Black’s Law Dictionary 1340 (9th ed. 2009).

    "Production blasting" means blasting that removes the overburden to expose underlying coal seams. W. Va. Code § 22-3-22A.

    "Protected structure" means any of the following structures that are situated outside the permit area: An occupied dwelling; a temporarily unoccupied dwelling which has been occupied within the past ninety days; a public building; a structure for commercial purposes; a school; a church; a community or institutional building; and a public park or a water well. W. Va. Code § 22-3-22A.

    "Reasonable ingress and egress" or "reasonable access" means access to the cemetery or grave site within ten days of the receipt of written notice of the intent to visit the cemetery or grave site. If the property owner cannot provide reasonable access to the cemetery or grave on the desired date, the property owner shall provide reasonable alternative dates when the property owner can provide access within five days of the receipt of the initial notice. W. Va. Code § 37-13A-2.

    "Reasonable notice" means written notice of the date and time the authorized person intends to visit the cemetery or grave site delivered to the property owner at least ten days prior to the date of the intended visit. W. Va. Code § 37-13A-2.

    "Savor of the realty" is a traditional legal idiom that means an interest arising from land. Black’s Law Dictionary 1461 (9th ed. 2009).

    "Structure" means any building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof. W. Va. Code § 61-3B-1.

    "Sui juris" means of full age and capacity. Black’s Law Dictionary 1572 (9th ed. 2009).

    "Surface mine", "surface mining" or "surface mining operations" means: (1) activities conducted on the surface of lands for the removal of coal, or, subject to the requirements of section fourteen of this article, surface operations and surface impacts incident to an underground coal mine, including the drainage and discharge from the mine. The activities include: Excavation for the purpose of obtaining coal, including, but not limited to, common methods as contour, strip, auger, mountaintop removal, box cut, open pit and area mining; the uses of explosives and blasting; reclamation; in situ distillation or retorting, leaching or other chemical or physical processing; the cleaning, concentrating or other processing or preparation and loading of coal for commercial purposes at or near the mine site; and (2) the areas upon which the above activities occur or where the activities disturb the natural land surface. The areas also include any adjacent land, the use of which is incidental to the activities; all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of the activities and for haulage; and excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to the activities. Provided, that the activities do not include the extraction of coal incidental to the extraction of other minerals where coal does not exceed sixteen and two-thirds percent of the tonnage of minerals removed for purposes of commercial use or sale, or coal prospecting subject to section seven of this article. Surface mining does not include any of the following: (i) coal extraction authorized pursuant to a government-financed reclamation contract; (ii) coal extraction authorized as an incidental part of development of land for commercial, residential, industrial or civic use; or (iii) the reclamation of an abandoned or forfeited mine by a no cost reclamation contract. W. Va. Code § 22-3-3.

    The "rule against perpetuities" is the common-law rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years (plus a period of gestation to cover a posthumous birth) after the death of some person alive when the interest was created. The purpose of the rule was to limit the time that title to property could be suspended out of commerce because there was no owner who had title to the property and who could sell it or exercise other aspects of ownership. If the terms of the contract or gift exceeded the time limits of the rule, the gift or transaction was void. Black’s Law Dictionary 1447 (9th ed. 2009).

    "Third-party right of enforcement" means a right provided in a conservation or preservation easement, in order to enforce any of its terms, granted to a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder. W. Va. Code § 20-12-3.

    "Touch or concern real property" is often a requirement for covenants or agreements that "run with the land." A "covenant running with the land" is a covenant intimately and inherently involved with the land and therefore binding subsequent owners and successor grantees indefinitely. Black’s Law Dictionary 421 (9th ed. 2009).

    "Trespass" under this article is the willful unauthorized entry upon, in or under the property of another, but shall not include the following: (a) entry by the State, its political subdivisions or by the officers, agencies or instrumentalities thereof as authorized and provided by law; (b) the exercise of rights in, under or upon property by virtue of rights-of-way or easements by a public utility or other person owning such right-of-way or easement whether by written or prescriptive right; (c) permissive entry, whether written or oral, and entry from a public road by the established private ways to reach a residence for the purpose of seeking permission shall not be trespass unless signs are posted prohibiting such entry; (d) entry performed in the exercise of a property right under ownership of an interest in, under or upon such property; or (e) entry where no physical damage is done to property in the performance of surveying to ascertain property boundaries, and in the performance of necessary work of construction, maintenance and repair of a common property line fence, or buildings or appurtenances which are immediately adjacent to the property line and maintenance of which necessitates entry upon the adjoining owner’s property. W. Va. Code § 61-3B-1.

    "Unmarked grave" means any grave or location where a human body or bodies have been buried or deposited for at least fifty years and the grave or location is not in a publicly or privately maintained cemetery or in the care of a cemetery association, or is located within such cemetery or in such care and is not commonly marked. W. Va. Code § 29-1-8A.


Legal Disclaimer

All information on this website is provided for educational, informational and referential purposes only. The contents of this website are meant to serve as a guide and do not constitute legal advice. Every effort has been made to make the contents complete, accurate, and up-to-date. However, there may be both typographical errors and mistakes in content. The information contained in the website includes laws from 50 states and the District of Columbia. States and DC update their official laws at different times, and at different intervals. Always check the official published state legislation. If you think that you may be involved with a violation of the laws contained on the website, consult your attorney for specific legal advice.