Request By:
Mr. R. Berle Clay
Office of State Archaeology
College of Arts and Sciences
Department of Anthropology
University of Kentucky
Lexington, Kentucky 40506
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General for an interpretation of KRS 416.560(4) which provides that a condemnor shall have the right to enter upon land to be condemned in order to make studies, surveys, tests, soundings and appraisals provided the land owner has been given a 10-day notice prior to such entry. We will state your question in the context in which you present it.
"My question is as follows. The Kentucky Department of Transportation, acting as agent for the Federal Highway Administration, is directed to prepare an environmental impact statement for those highway projects funded by the federal government, principally in compliance with the provisions of the NATIONAL ENVIRONMENTAL POLICY ACT (PUBLIC LAW 91-190 42 U.S.C. 4321 et. seq., (1970). Preparation of such a statement involves, among other things, the determination of the significance of archaeological sites within the proposed right of way according to Federal guidelines stated in the PROCEDURES OF THE ADVISORY COUNCIL ON HISTORIC PRESERVATION (36 CFR 800). This often requires the excavation of limited test pits within archaeological sites under consideration. Does the Department of Transportation, under KRS 416.560(4), have the right to enter upon private property, upon land which has not yet been acquired for highway right of way, to make such test excavations? "
The sections of statutes pertaining to archaeology are KRS 164.705-164.735. Although these statutes protect archaeological sites and objects of antiquity once they have been discovered and recognized they do not give the Department of Anthropology of the University of Kentucky the authority to enter upon private land for the purpose of searching for objects of antiquity. We believe that under the general police power of the state, the legislature could grant such authority in the same fashion as it has granted authority to the Department of Transportation and other condemnors in KRS 416.560(4). We do not believe, however, that said statute can be interpreted as applying to archaeological search.
We believe that the studies, surveys, tests, soundings and appraisals named in KRS 416.560(4) are only for the purpose of gaining physical and economic information necessary for the planning for the use of property to be acquired for a public or utility project. The Department of Transportation, for instance, can make core drillings to determine the geoglogical nature under the surface of property to be acquired for the project. Under the police power, it may enter upon the land whether the land owner agrees or not as long as proper notice is given and compensation is made for any damage done to the property. However, there is nothing in the statutes authorizing similar tests for the purpose of archaeological search.
In summary, the Department of Transportation does not, under KRS 416.560(4), have the right to enter upon private property which has not as yet been acquired for highway right of way to make excavations for archaeological search.