CHAPTER 6 MAN OVER MATTER--ARPA, PRPA, AND SOME KEY DIFFERENCES BETWEEN THEM

• Jurisdiction: United States

Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)
CHAPTER 6
MAN OVER MATTER--ARPA, PRPA, AND SOME KEY DIFFERENCES BETWEEN THEM
Elise Foster ¹
U.S. Department of Agriculture
Office of the General Counsel
Ogden, Utah

ELISE FOSTER is an attorney-advisor with the U.S.D.A. Office of the General Counsel, Ogden, Utah. Elise received her B.A. from the University of Wisconsin-Madison in 1988 and her J.D. from the University of Michigan Law School in 1991. Prior to joining OGC in 1997, she worked for the City of Chicago Law Department prosecuting criminal, civil and environmental cases. She currently represents and advises the Forest Service in Region 4 of the Forest Service which covers Utah, Idaho, Nevada, and parts of Wyoming and California. Her practice includes advice and counsel on a wide variety of matters for the Forest Service including FTCA claims, affirmative civil claims--primarily fire suppression cost recovery litigation, cultural resources, paleontological resources, as well as NEPA/NFMA/ESA litigation and appeals. Elise participated on the committee drafting the Forest Service regulations under the Paleontological Resources Protection Act. She is the author of the ARPA civil handbook for government employees (Using ARPA Civil Penalties, 2007), and a law review article on the use civil penalties collected under ARPA. 13 Great Plains Natural Resource J. 29 (2010). Elise enjoys skiing, camping, fishing and riding, but spends much of her time hobby farming and going to soccer games.

I. Introduction

The Archaeological Resources Protection Act² was passed by Congress in 1979 to, among other things, "secure for the present and future benefit of the American People the protection of archaeological resources and sites."³ ARPA creates a permitting scheme designed to foster cooperation between bona fide researchers and land managers who are charged with protection of archaeological resources. ARPA's enforcement provisions render injury or disturbance of archaeological remains on public and Indian lands a crime, punishable by criminal and civil penalties. The statute prohibits the sale, offer for sale, or transportation of archaeological resources removed from public or Indian land in violation of the law, and prohibits the transportation of such resources in interstate or international commerce in violation of state or local law.⁴

The purpose of the Paleontological Resources Preservation Act is "[T]o provide for the protection of paleontological resources on Federal lands, to promote the systematic compilation of baseline paleontological resource data, science-based decision-making, and accurate public education, to provide for a unified management policy regarding paleontological resources on Federal lands, to promote legitimate public access to fossil resources on Federal lands, to encourage informed stewardship of the resources through educational, recreational, and scientific use of the paleontological resources on Federal lands, and for other purposes."⁵

While the Paleontological Resources Preservation Act is said to be modeled after ARPA and the framework of these two statutes are similar, there are significant differences between them. In this

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paper, I provide an overview of the two statutes, and then explore some of those key differences. An examination of these differences shows that evidence of past human life is afforded the greatest degree of protection under the law. This probably mirrors our own anthropocentric views toward the value of "things human" versus the value of non-human things.

II. The Archaeological Resources Protection Act

Congress enacted ARPA in 1979. The Congressional findings and statement of purpose for the Act is found at 16 USC 470aa. In this statement of purpose Congress expressly acknowledged that:

1. Archaeological resources on public lands and Indian lands are an irreplaceable part of the nation's heritage;

2. That these resources are endangered because they are commercially attractive;

3. Existing laws do not adequately prevent loss and destruction or archaeological resources;

4. "there is a wealth or archaeological information which has been legally obtained by private individuals for noncommercial purposes and which could voluntarily be made available to professional archaeologists and institutions."

ARPA defines "archaeological resource" as "any material remains of past human life or activities which are of archaeological interest...[and] is at least 100 years of age."⁶ "Archaeological interest" is defined in the APRA uniform regulations as "capable of providing scientific or humanistic understandings of past human behavior, cultural adaptation, and related topics through the application of scientific or scholarly techniques."⁷ Archaeological resources may, under some circumstances, include paleontological resources: "Non Fossilized and fossilized paleontological specimens...shall not be considered archaeological resources...unless found in an archaeological context."⁸

ARPA establishes a permitting requirement and standards for all authorized federal land managers for archaeological investigations. The standards require that archaeologists are qualified to conduct their work, that the work is done in the interests of the public, and that any resources excavated or removed will remain the property of the United States.⁹ Federal regulations, promulgated in 1989, govern the curation and administration of resources recovered under an ARPA permit.¹⁰ ARPA requires that Indian Tribes that own or have jurisdiction over lands from which archaeological resources are removed under an ARPA permit must consent to the disposition of such resources.¹¹

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Acts outside the authorization contained in a permit--such as acts either prohibited by the permit or acts simply outside the scope of the permit--expose the permit holder to the possibility of civil penalties and suspension or revocation of the permit.¹² The ARPA permit has virtually replaced the earlier Antiquities Act permits under 16 U.S.C. 432, but there remain limited circumstances under which an Antiquities Act permit might still be issued or may continue to be in effect.

ARPA also establishes federal protection of archaeological resources on public land and Indian land by setting forth the following criminal prohibitions:

a. No person may excavate, remove, damage or otherwise alter or deface or attempt to excavate, remove, damage or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit...

b. No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archaeological resource if such resource was excavated or removed from public lands or Indian lands in violation of: 1) the prohibition contained in subsection (a) of this section, or 2) any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.

c. No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule regulation, ordinance, or permit in effect under State or local law.

d. Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c)...shall, upon conviction, be fined...or imprisoned... or both...¹³

On its face the statute is clear that the criminal offense is a knowing offense. The case law, too, has established that an ARPA criminal prosecution must prove general intent as an element of the offense.¹⁴ Arguably, some courts have required proof of specific intent rather than general intent.¹⁵

The difference between a misdemeanor ARPA offense and an ARPA felony is established by determining the value of the resources involved in the violation. The felony threshold for an ARPA violation is $500.

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So, if the commercial or archaeological value of the resources involved and the cost of restoration and repair of those resources is over $500, the violation can be prosecuted as a felony. It is interesting to note that both ARPA and PRPA allow the consideration of values other than commercial value or "fair market value" to determine the seriousness of the crime. Other statutes in Title 18 of the U.S. Code generally have been limited to consideration of commercial value.¹⁶

The civil penalty provision of ARPA allows the assessment of a civil penalty against any person for any violation of the ARPA regulations.¹⁷ Most of the prohibitions stated in the Act are repeated in the regulations. However, subsection (c) is not listed in the prohibited acts section of the regulations, and therefore one may not be issued a civil penalty for violation of 16 U.S.C. 470ee(c). The amount of the civil penalty is based upon the archaeological value or the commercial value plus the cost of restoration and repair of the resource and the site involved. Any person assessed a civil penalty must first be given notice and an opportunity for a hearing.¹⁸ The penalty assessed for a second or subsequent violation may be doubled. All archaeological resources, and vehicles and equipment used in connection with a violation of ARPA may be subject to forfeiture upon conviction of a violation or upon the assessment of a civil penalty.¹⁹

The ARPA regulations describe how to determine archaeological value, which is the value of the information associated with the resource "appraised in terms of the costs of the retrieval of the information which would have been obtainable prior to the violation."²⁰ Such costs may include preparation of a research design, field work, laboratory analysis, and preparing reports as needed. Commercial...