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Digging up delays: How to handle unexpected archaeological finds on the job site

When construction crews start excavating for a highway or other structure, they can run across all kinds of things, like the remnants of an old foundation or cellar, a buried pile of junk, or even human remains. Yes, it’s not just the stuff of Hollywood horror movies. Construction crews often find themselves digging up significant pieces — and people — of the past, and those discoveries could sideline a project for a day or shut it down permanently.

In addition to archeological finds, the uncovering of victims of violent crime, natural disasters or other tragic events can delay a construction project, as can previously uncatalogued grave sites.

Crews must be aware of the reporting procedure for situations when they come across what appear to be bones, historical artifacts or a burial site during construction, and prepare for a potential slowdown in work when they make an unintentional discovery.

When an ordinary project brings an unexpected find

Coming across a historical find isn't a one-in-a-million chance. More than 120,000 federal projects in 2013 required some level of compliance under the National Historic Preservation Act, which led to 135,000 items being examined for their historical or cultural merits, according to Cathy Lilford Altman, co-chair of the construction and real estate litigation group at Carrington, Coleman, Sloman & Blumenthal in Dallas.

These figures come from only federal projects, so it's easy to see the magnitude of the issue when throwing private projects into that mix as well. "It’s common enough that in 2007, the American Institute of Architects added a provision to its standard form general conditions addressing the discovery of human remains, burial markers and archeological sites," Altman said.


"It’s common enough that in 2007, the American Institute of Architects added a provision to its standard form general conditions addressing the discovery of human remains, burial markers and archeological sites."

Cathy Lilford Altman

Co-chair of the construction and real estate litigation group at Carrington, Coleman, Sloman & Blumenthal


In New Jersey, contractors and developers can open themselves up to potential imprisonment and millions of dollars in fines if they knowingly disturb human remains, according to attorney Michelle Schaap of Chiesa Shahinian & Giantomasi

That’s not to say, however, that owners, in the majority of cases, can’t do what they want with their property, even if they find something that would generate interest from agencies tasked with preservation or dealing with human remains. People can proceed lawfully with their property and develop it unless there’s a "compelling public reason" to the contrary, Schaap said.

One of those considerations, at least in New Jersey, is the emotional distress that the relocation of deceased individuals might cause relatives. A high-profile example of this situation would be the 9/11 families who begged New York City not to build on the site of the World Trade Center terrorist attacks. Surviving relatives contended, Schaap said, that there were so many victims who were never found that the entire location had become a de facto burial site and shouldn’t be disturbed further.

What to do when you come across a piece of history

So what should contractors do if they stumble across what looks like human remains or what could be something of historical significance?

"At the very beginning of the process, when they’re doing initial environmental reviews, historic preservation planning should be a part of that," said Peter Peregrine, professor of anthropology at Lawrence University in Appleton, WI. This step, he said, can eliminate — or at least reduce — the chance of "any surprises" during construction.

Peregrine said that he, on the other hand, is always surprised that most smaller contractors and developers don’t take the time to plan for these situations, especially because they are part of the permitting paperwork at many agencies. Some building departments, he said, even go so far as to highlight the archaeological review items in bold colors and provide maps of where previous discoveries have been made, yet they’re still ignored. 

Peregrine acknowledged, however, that some "people in bureaucratic positions are a little snippy about things." They have bosses looking over their shoulders too, he said, so the best course of action is to just talk with them and try to build a friendly rapport. "Then it can all go smoothly," he said.


"At the very beginning of the process, when they’re doing initial environmental reviews, historic preservation planning should be a part of that."

Peter Peregrine

Professor of anthropology at Lawrence University


But what if the prospective site has been vetted paperwork-wise, has been given the all-clear and then, two weeks into the project, an excavator uncovers an artifact — or worse, a body?

In Illinois and in many other jurisdictions, in the case of human remains, it’s incumbent upon project officials to first contact the coroner’s office, according to attorney Richard Reizen, partner at Gould & Ratner in Chicago. "In Illinois, the coroner has to make the initial determination if [the bones] are over 100 years old. If so, they then call the Illinois Historic Preservation Agency," he said. 

If the find is not deemed to be culturally significant, coroners usually take what they need for further examination and, in many cases, let crews get back to work. Reizen added that the process doesn’t roll along very quickly, however, if it looks like a recent crime may have been committed on the site.

Reizen said he’s sure that some contractors proceed without calling authorities after finding human remains, even more so after discovering something cool to take home. He said he reminds clients that if anyone on site chooses to take part in that sort of activity, they’re opening themselves up to all kinds of legal action, particularly under laws such as the Native American Graves Protection and Repatriation Act and the Archaeological Resources Protection Act. And that's in addition to local preservation regulations. "If you cover it up, you’ve got problems," he said.

Altman said that unfortunately, there are no data collection methods that can estimate how often this happens and added that some crews might legitimately miss things when working at a fast pace.

When project schedules clash with discovery slowdowns

It’s this same stress and anxiety over meeting project deadlines, Peregrine noted, that also can make an archeologist's job more difficult. "There's constantly that kind of pressure, and it’s understandable because time is money," he said. However, he added that despite misconceptions about archaeologist motivations when they're charged with overseeing a site, "there are attempts to strike a balance between historic preservation and the need to get things built, to get going."

However, there are times when a project is going to suffer severe delays or will have to be canceled because of the magnitude of what’s found on site. Schaap said this is the point when it’s important to look at the contract to make sure an extension of time will be granted under those circumstances. This is in order for contractors and subcontractors to be able to avoid having to pay liquidated damages for working past the original schedule. 

Demobilization and possibly remobilization reimbursement for equipment and personnel costs should be provided for as well, according to Schaap. "Depending on how the contract is written," she said, "the owner might have an obligation to pay for lost profits." If there are no such provisions in the contract, insurance may be able to make up the loss.

In the best-case scenario, Reizen said, local and federal authorities will let the project proceed, if necessary, under supervision of relevant historical authorities or law enforcement in the case of a crime. His best piece of advice: Always follow the rule of thumb of "stop, call and preserve." 

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Filed Under: Commercial Building Residential Building Infrastructure Legal/Regulation