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Technical Brief 16 The Civil Prosecution Process of the Archaeological Resources Protection Act


Issues in the Proof of a Civil Case

Jurisdiction
Civil and criminal prosecutions have the same jurisdictional basis. That is, for the law to apply, Federal or Indian lands must assertedly have been impacted by the alleged violator.19 Indian lands include lands of Alaska Native Village corporations and Native Hawaiian as well as trust lands subject to a restriction on alienation. Federal lands include those in Puerto Rico, Guam, and the Virgin Islands or any lands held in fee title by the United States.20 The only exception to tying the violation to Federal or Indian lands is when an otherwise protected item is obtained in violation of a State or local law and then transported in interstate commerce.21

Any person who commits a prohibited act on the lands under the jurisdiction of ARPA is liable under the law. Person is defined as "an individual, corporation, partnership, trust, institution, association, or any other private entity or any officer, employee, agent, department, or instrumentality of the United States, of any Indian tribe, or of any State or political subdivision thereof."22 The description of person is important to note in the context of a potential civil action because the type of "person" will more often be broadly construed than in the typical criminal case. For example, a corporation that is not charged in a criminal ARPA indictment nonetheless may find itself facing civil ARPA charges. The reason for the difference may be found in the intent exhibited by the violator. Intent is discussed below.

Identification
In all cases, the "person" to be held accountable must be identified. This may be a direct identification, as in a criminal case, where the violator is observed at the scene. In a civil case the alleged violator may be identified as the "person" responsible for the care and control of a site such as the private contractor who allows a protected area to be bulldozed. The alleged violator also may be a business that allowed equipment to be rented if the firm knew or had reason to know the use planned for the equipment (see intent). More than one person may be held responsible, although each may have had a different level of involvement. Directors of corporations and even government employees are not immune from civil liability.

Protection of Archeological Resources
Under ARPA the protected items are the same in both civil and criminal prosecutions.23 Archeological resources are those material remains of past human life where there is sufficient material remaining to extract scientific data.24 The ability to gain information about past human life from the material remains is referenced in the law as "archeological interest." The items also must be over 100 years old.

Expressly excepted from the protection of ARPA is the collection of arrowheads found on the surface of the ground.25 Although technically protected, as a practical matter "arrowhead" includes any object that would appear to the common person to be an arrowhead even if it is actually a spear point or a scraper. To be protected the stone point must be totally subsurface. Generally, unworked minerals, rocks, and paleontological (fossil) specimens are not protected by ARPA unless they have evidence of human interaction.26 However, where these items are found within an archeological site they are protected if they can render clues to the past human existence. The proof of this issue will rely on the expert testimony of an archeologist. Similarly, coins and bullets are not protected unless they are found in a direct physical relationship with an archeological site, such as in a battlefield.27

Authority of a Permit
Where the person holds a valid ARPA or comparable permit and acts within the permit, there can be no violation.28 Any lawful excavation will be overseen by an individual holding the permit. Government contracts and government employment status may take the place of an ARPA permit because they act as authority to undertake the activity obligated by the contract or within the scope of employment. Government contracts do not excuse the obligation to act responsibly, and all government contracts will or should contain ARPA language.29 Government employees and volunteers working with the government do not need a permit. However, if their actions exceed the scope of the job they may face civil sanctions.

ARPA violations may still be perpetrated by the holder of a permit or government contract where the action taken exceeds the authority of the document.30 This may occur if unnecessary excavation takes place or if the contractor or permittee strays from the designated area.

Calculating the Amount of Damage
Civil and criminal archeological site damage calculations are conducted in the same manner, but the application of the information varies. Damage calculations in civil actions become the penalty amount, whereas in criminal actions the amount of damage determines the severity of the crime, and the damage may be a factor in sentencing. A criminal defendant may be ordered to pay the damage amount as restitution to an agency.

Quantifying Damages: The amount of the penalty is determined by calculating the archeological damage to the area or the commercial value of the materials and adding either, but not both, to the cost of restoration and repair of the materials or the area that was damaged.31 This is another aspect of case preparation that is dependent wholly upon the archeologist acting as an expert witness. Commercial value of an object may be determined by the price placed on the object by the alleged violator, by the going price of similar objects offered for sale, or by research in collector catalogs. Archeological value is described in the Uniform Regulations as the cost of scientific data recovery that would have been attainable prior to the violation in an area that is adjacent to the violation site, and that is of comparable size.32 It assumes that the disturbance has created a situation of forced excavation even though no further data recovery may occur in the near future. It enables the agency to arrive at a dollar amount of damage even though the actual loss of a nonrenewable resource is priceless.

Added to the archeological damage or commercial value is the cost of restoration and repair. This includes the actual costs of reconstruction or stabilization of the archeological resource, surface stabilization, research to carry out stabilization, physical barriers or protective devices to guard against further disturbance, analysis of the remaining archeological materials, reinterment of human remains, curation, and the preparation of reports necessary to do any of the above activities.33

Damages as Civil Penalties: In a civil ARPA case the damage amount becomes the actual amount that may be assessed to the person or persons found to be responsible. There is no minimum or maximum amount. When there are subsequent violations by a person, the amount of the damages assessed is doubled.34 In no situation may the person be assessed more than double the actual damage amount. The land manager does have the discretion in the negotiation of a civil penalty amount prior to an administrative hearing to reduce the assessed penalty. When the violation is so egregious that the damage assessment as a sanction is insufficient, then criminal prosecution may be the more appropriate course of action. The criminal law provides for incarceration and penalties over and above the actual damage amount. However, the maximum fine in a criminal action against an individual is $250,000 and against a corporation is $500,000.35 It is possible for civil penalties to exceed these limitations.

Forfeiture
As part of the civil proceeding, the ALJ may order that archeological resources in the possession of the person and all vehicles and equipment which were used in the violation be forfeited.36 All items which were forfeited by order of the ALJ and that involved violations that originated on Indian lands are to be turned over to the Indian or Indian tribe affected. Where Indian interests are not affected, the items are forfeited to the United States. Agencies receiving forfeited vehicles and tools place them into agency use. Native American human remains are subject to repatriation wherever they are found, and non-repatriated items are subject to curation under the Federal curation regulations. 37

Intent, a Non-Issue in Actions Based on Negligence
In every criminal action the intent of the defendant must be proven. The criminal statute will either call for the government to prove the specific intent of the alleged wrongdoer or show general intent. That is, the government must show that the defendants actually knew they were doing wrong and persisted in their actions, or that they knew what they were doing though they may have had no knowledge of the law. The ARPA criminal statute is a general intent law.38 In a civil case intent is a not an issue. A person may be liable civilly even if the person had no knowledge of the prohibited activity if the actions of the wrongdoers occurred while in the employ of that person or under that person's supervision. Negligence, which gives rise to civil liability, is:

The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.39

Inadvertence, carelessness, thoughtlessness, and inattention are all negligence. Where there is a duty to act or a contractual obligation to take action, the failure to act is negligence. Therefore a person may be negligent due to an action or failure to act. Negligence may exist even where there is no ill will or no desire that injury occur.

Civil penalties also may be assessed for any violation of a permit.40 Intent is not an issue, and the alleged violation may be technical or inadvertent. In the case of technical violations of a permit, agencies must proceed cautiously in seeking sanctions. During the passage of ARPA, Congress expressed concern that penalties not be used to harass citizens in their normal use of public land.41

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