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Technical Brief 20 archeological resource damage assessment:  legal basis and methods

Archeological Value

“Archaeological Value” is defined in Section __.14 of the ARPA Uniform Regulations:

Archaeological value. For purposes of this part, the archaeological value of any archaeological resource involved in a violation of the prohibitions in § __.4 of this part or conditions of a permit issued pursuant to this part shall be the value of the information associated with the archaeological resource. This value shall be appraised in terms of the costs of the retrieval of the scientific information which would have been obtainable prior to the violation. These costs may include, but need not be limited to, the cost of preparing a research design, conducting field work, carrying out laboratory analysis, and preparing reports as would be necessary to realize the information potential (Section __.14(a)).

Note that the definition specifies that scientific information retrieval costs “may include, but need not be limited to” those of the four operations listed. Therefore, costs of other legitimate scientific retrieval operations also may be included in the archeological value determination. An example of a necessary scientific information retrieval operation that is not included in the definition's list of operations is consultation with the State Historic Preservation Officer (SHPO), the Tribal Historic Preservation Officer(s) (THPOs), or other parties as appropriate. Other examples are repatriation of Native American Graves Protection and Repatriation Act (NAGPRA) items and the long-term curation of other artifacts and materials when items of either category would be recovered during scientific information retrieval.

In determining archeological value, it is important to understand the legal concept on which this value is based. Archeological value is not a dollar figure for the cost of actually carrying out scientific research or contract archeological work in which all currently accepted methodological standards would apply. Archeological value is a projected cost figure for scientific information retrieval operations as required by ARPA for use in the legal system in order to assess the amount of harm to an archeological resource caused by unauthorized acts. This determination requires the calculation of reasonable and credible costs for appropriate retrieval of scientific information from the damaged portion of the archeological resource if it was still in an undamaged condition. These costs should be proportional to the amount of damage in order to be accepted as a justifiable measure of the harm caused. Therefore, methodological considerations that would apply to actual retrieval of information from the archeological resource do not necessarily apply in an archeological value determination.

For example, proposing to base archeological value on continuing an excavation unit to sterile soil at a depth of two meters below the surface would not be proportional to the damage caused by an unauthorized excavation by a looter that stopped at one yard (0.9144 meter) below the surface, even though an actual excavation unit normally would continue to sterile soil. Alternatively, proposing to base archeological value on complete scientific excavation of a site would be proportional to complete destruction of the site by unauthorized mechanical excavation, even though actual scientific information from the site as a unit using modern archeological methods normally would be based on a sampling strategy.

Procedures for Determination of Archeological Value.

The following procedures can be used to determine archeological value. These procedures are phrased as questions to be answered making this determination. The questions are based on the Society for American Archaeology “Professional Standards for the Determination of Archaeological Value” (2003). The standards are included here as Appendix B (see also McAllister 2006). The applicable standard is referenced in each question. The use of these professional standards in determining archeological value is recommended strongly. An archeologist who has or will develop the required expertise should carry out these procedures.

  1. What is the archeological resource involved in the violation (see Standard 1 a., c. and d.)? For example:
    • Is it an isolated artifact?
    • Is it a portion of a site where no features are present?
    • Is it a feature (e.g. a house floor; an historic cemetery plot; a rock art panel or boulder)?
    • Is it the entire site?
  2. How, both qualitatively (type of damage) and quantitatively (amount of damage), has the identified archeological resource been affected by the violation (see Standard 1. b.)? For example:
    • Has an isolated artifact been removed?
    • Has a portion of the site where no features are present been excavated and, if so, how much excavation, both horizontally and vertically, has occurred?
    • Has a feature been excavated or defaced and, if so, how much of the feature has been affected (i.e. all of the feature or only some portion of the feature)?
    • Has an entire site been affected and, if so, how has it been damaged (e.g. has it been bulldozed; have all the metal artifacts been removed with the aid of metal detectors; has it been completely surface collected)?
  3. How, both quantitatively (scale, e.g., area and depth) and qualitatively (methods), would scientific information have been retrieved from the identified archeological resource prior to the violation (see the discussion of scale and methods in Standards 2 and 3)? For example:
    • What scientific information retrieval strategy would have been used if the isolated artifact affected by the violation had been located during an archeological survey (e.g., documentation, mapping and controlled collection)?
    • What scientific information retrieval strategy, both quantitatively (scale) and qualitatively (methods), would have been used if the featureless portion of the site affected by the violation had been excavated scientifically (e.g., a test excavation and, if so, of what size)?
    • What scientific information retrieval strategy, both quantitatively (scale) and qualitatively (methods), would have been used if the feature affected by the violation had been excavated or documented scientifically (e.g. scientific excavation or documentation the entire feature or only a portion of the feature)?
    • What scientific information retrieval strategy, both quantitatively (scale) and qualitatively (methods), would have been used if the entire site affected by the violation had been excavated or documented scientifically (e.g., scientific excavation or documentation of the entire site or only a sample of the site)?
  4. Is the scientific information retrieval strategy projected for the identified archeological resource proportional, both quantitatively (scale) and qualitatively (methods), to the effect of the violation (see the discussion of proportionality in Standards 2 and 3)?
  5. What operations would be involved in the scientific information retrieval strategy projected for the identified archeological resource and what is the justification for each of these operations (see Standards 3 and 4)?
  6. What is the line item cost of each of these operations?

    Develop an archeological value table that shows the operations and their line item costs (see Figure 3). Note that these costs should be consistent with industry standards and should include all administrative overhead costs such as employee benefits.

  7. What is the total dollar figure for archeological value?

    Include this figure in the archeological value table.

Examples of Categories of Scientific Information Retrieval Operations in an Archeological Value Determination

The following are examples of categories of scientific information retrieval operations that might be included in an archeological value determination in a case involving unauthorized excavation at a Native American site. (It should be noted that the scientific information retrieval operations included in an actual archeological value determination will depend upon the specific circumstances of the case.) These operations can be categorized as planning, investigation, and post-investigation activities. The italicized operations are those specifically identified in the definition of archeological value in the ARPA uniform regulations. It is important to consider the initial consultation and the latter two, post-investigation activities.

This list of operations also can be used to illustrate some important concerns and potential problems in archeological value determinations. Operations and resulting costs that cannot be justified should not be included. For example, laboratory analysis costs in an archeological value determination should be for the analysis of artifacts and specimens reasonably expected to be recovered in the scientific information retrieval strategy on which this determination is based. They should not include analysis costs for artifacts or specimens not observed in association with the damaged archeological resources since there would be no reasonable basis for projecting their recovery. For example, it would be speculative and inappropriate to include radiocarbon dating analysis costs when specimens expected to contain carbon are not present. By the same token, it would not be appropriate to include repatriation operations and costs unless the violation affected items protected by NAGPRA.

Also note that all of the costs in the archeological value determination should be directly associated with scientific information retrieval operations and should be clearly distinct from operations carried out or projected as part of restoration and repair (see below) to avoid the "double counting" problem. Two examples illustrate this point. Archeological value laboratory analysis costs should be for artifacts and specimens expected to be recovered in retrieving scientific information from the archeological resources involved in the violation. Restoration and repair examination and analysis costs are those costs incurred or projected for actual damage to archeological resources. Similarly, repatriation and curation costs under archeological value should be for items subject to these requirements reasonably expected to be recovered in retrieving scientific information. Restoration and repair repatriation and curation costs are for items actually collected or seized as evidence.

Figure 3: Example of an Archeological Value Table Format. (Adapt as necessary based on circumstances of violation. Note that cost is shown only as an example.)

Archeological Value
[Category / Line Item] [Units / Unit Cost] [Line Item Cost]
Consultation with SHPO 4 hours @ $50.00/hour $200.00
Consultation with THPO(s)
or Other Parties
4 hours @ $50.00/hour $200.00
Preparation of Research Design __________________ _______
Conducting Field Work __________________ _______
Carrying out Analyses __________________ _______
Preparation of Reports __________________ _______
Curation __________________ _______
Total Archeological Value _______

Cost of Restoration and Repair

“Cost of restoration and repair” is defined in Section __.14 of the ARPA uniform regulations:

Note that the definition specifies that restoration and repair costs “may include, but need not be limited to” those of the eight operations listed. Therefore, costs of other legitimate restoration and repair operations also may be included in the cost of restoration and repair determination. Examples of necessary restoration and repair operations that are not included in the definition's list of operations are the eventual repatriation or curation of archeological resource items seized as evidence (repatriation of NAGPRA items, curation of other archeological materials and the associated documentation).

It is important to note that there are two types of restoration and repair: emergency restoration and repair and projected restoration and repair. Emergency restoration and repair operations are those already carried out or those that have not been carried but will need to be carried to prevent further immediate loss or damage of the resource(s) or to complete the emergency operations. The field damage assessment procedures and preparation of the archeological resource damage assessment report are part of the emergency restoration and repair process (these operations are components of items (6) and (8) above). Projected restoration and repair operations are those that will need to be carried out, but do not need to be carried out immediately. Examples of projected restoration and repair are full reconstruction to the pre-violation condition of a prehistoric or historic structure damaged by vandalism and curation of items collected or seized as evidence.

Procedures for Determination of Cost of Restoration and Repair

The following procedures can be used to determine the cost of restoration and repair. An archeologist who has or will develop the required expertise should carry out these procedures.

  1. Identify the emergency restoration and repair operations already carried out or that will be carried out to complete emergency restoration and repair.
  2. Identify the projected restoration and repair operations to be carried out in the future.
  3. Determine the line item cost of each of these operations.
  4. Determine the subtotals for emergency restoration and repair costs and projected restoration and repair costs and their sum, the total cost of restoration and repair.
  5. Develop a cost of restoration and repair table that shows the operations, their line item costs, the subtotals for emergency restoration and repair costs and projected restoration and repair costs and the total figure for cost of restoration and repair (see Figure 4). Note that costs should be consistent with industry standards and should include all administrative overhead costs such as employee benefits. (Separate tables may be developed for emergency restoration and repair costs and projected restoration and repair costs; however, the recommended approach is to show these costs in a single table since they are components of the total cost of restoration and repair.)

Examples of Categories of Emergency and Projected Restoration and Repair Operations in a Cost of Restoration and Repair Determination

The following are examples of categories of emergency and projected restoration and repair operations that would be included in a cost of restoration and repair determination in a case involving unauthorized excavation at a Native American site. (It should be noted that the restoration and repair operations included in an actual cost of restoration and repair determination will depend upon the specific circumstances of the case.) The italicized categories are those specifically identified in the definition of cost of restoration and repair in the ARPA uniform regulations.

Emergency Restoration and Repair

Projected Restoration and Repair

Examples of important concerns and potential problems with restoration and repair determinations are also illustrated by this list. As in the case of an archeological value determination, all operations and costs in a restoration and repair determination should be fully justifiable. For example, the consultation with affiliated tribes as part of emergency restoration repair is required because looting of a Native American site constitutes an "inadvertent discovery" under NAGPRA. The consultation operation under projected restoration and repair may or may not be necessary depending on whether or not any of the other operations proposed in this phase would require consultation. If they do not, the second episode of consultation is not justifiable and should not be included.

As was also noted in relation to archeological value determinations, restoration and repair operations should not include any of the same operations projected as part of the scientific information retrieval strategy developed for the archeological value determination. Already discussed has been the necessity for a clear distinction between analysis, repatriation and curation operations potentially projected for an archeological value determination versus the analysis, repatriation and curation operations included in a restoration and repair determination. Other examples are provided by the consultation and report preparation operations potentially included in both determinations. Consultation in a restoration and repair determination should pertain directly to restoration and repair measures already carried out or projected to be necessary to complete this process. By contrast, this operation in an archeological value determination is the consultation that would be required prior to carrying out the projected scientific information retrieval strategy on which archeological value is based. Similarly, the report preparation operations in restoration and repair and archeological value determinations have two different purposes. The report prepared as part of emergency restoration and repair is a damage assessment report documenting the findings on damage to archeological resources actually caused by the violation. Alternatively, the report preparation operation in an archeological value determination pertains to the technical report that would be required on the findings of the projected scientific information retrieval strategy.

Figure 4: Example of a Cost of Restoration and Repair Table Format (Adapt as necessary based on circumstances of violation. Note that cost is shown only as an example.)

Cost of Restoration and Repair
[Category / Line Item] [Units / Unit Cost] [Line Item Cost]
Emergency Restoration and Repair
Examination and Analysis 3 hours @ $50.00/hour $150.00
Consultation
Consultation with SHPO 4 hours @ $50.00/hour $200.00
Consultation with THPO(s)
or Other Parties
4 hours @ $50.00/hour $200.00
Stabilization
Labor ___________________ _______
Materials ___________________ _______
Preparation of reports ___________________ _______
Emergency Restoration and Repair Subtotal _______
Projected Restoration and Repair
Repatriation ___________________ _______
Curation ___________________ _______
Projected Restoration and Repair Subtotal _______
Total Cost of Restoration and Repair _______

Archeological Resource Damage Assessment Report Preparation

The field damage assessment and value and cost determination procedures carried out and the findings of this process are presented in an archeological resource damage assessment report. The archeological resource damage assessment report is an extremely important part of the overall criminal case report or civil case documentation because it provides the information necessary to prove that the archeological elements of a violation of ARPA (criminal or civil) or other applicable statutes are met. The report also is the basis for the author's testimony in a criminal or civil legal proceedings since it tells the attorneys involved in the case what this archeologist is prepared to testify about.

Report Topics

The topics that will be included in an archeological resource damage assessment report are listed below. These topics serve as an outline for planned reporting and as a table of contents for reports as they are drafted. Some resource damage assessment reports may not include all of these topics. The order of the sections in the report dealing with these topics is optional. For example, in some reports, the archeological resource damage section precedes the field damage assessment procedures section. Also, the field damage assessment procedures and archeological resource damage sections are sometimes merged into a single section.

  1. Introduction
  2. Archeological Resource Description
  3. Field Damage Assessment Procedures
  4. Archeological Resource Damage
  5. Value and Cost Determinations
  6. Conclusions
  7. Summary

Basic Stylistic Rules

Three basic stylistic rules should be observed in preparing archeological resource damage assessment reports. The first two are particularly critical because these reports must be read and understood by non-archeologists. For example, in a criminal case, non-archeologists who will read the report include the case agent, the prosecuting attorney and the defense attorney. The judge may also read portions of the report.

  1. Write for non-archeologists, not other professional archeologists.
  2. Use clear, easily understandable language and explain archeological terms clearly (when a number of archeological terms will be used in the report, a glossary is recommended).
  3. Present all necessary information, but do not include unnecessary information.

Procedures for Archeological Resource Damage Assessment Report Preparation

The following section-by-section listing suggests procedures that can be used to prepare an archeological resource damage assessment report. They are presented using the topical outline for such a report suggested above.

  1. Introduction

    Describe how you became involved in the case and the details of your participation.

  2. Archeological Resource Description

    Show that all aspects of ARPA's archeological resource definition are met (refer to the ARPA definition of an archeological resource [see above] and the ARPA uniform regulations list of the “classes of material remains” considered to be archeological resources [see Appendix A]).

    In establishing that the archeological resource has archeological interest, discuss both scientific interest (the scientific or historical importance of the resource) and humanistic interest (the importance of the resource to living people, both descendants of the people associated with the resource, if any, and the general public).

  3. Field Damage Assessment Procedures

    Describe the field damage assessment procedures carried out.

  4. Archeological Resource Damage

    Describe the damage to the archeological resources in terms of the acts prohibited by ARPA (see above) or other statutes and state the total amount of damage. This text may be supplemented with a table showing damage amounts by damage location if such a table will be of assistance in understanding how the total amount of damage was determined. Photographs and a map or maps should be included as figures to illustrate the extent of damage and profile drawings may also be useful for this purpose in cases involving excavations.

  5. Value and Cost Determinations

    Identify the value and cost determinations carried out. For example, as was noted above, some cases may involve an archeological value and cost of restoration and repair determination, but not a commercial value determination. Also, in some cases, the archeologist who prepares the damage assessment report dealing with topics 1 through 4, may not have carried out any of the value and cost determinations or only some of them. For example, a government archeologist determines the cost of restoration repair, a contract archeologist determines archeological value and a third archeologist or an appraiser determines commercial value. In such a situation, there would be a report dealing with the procedures carried out by each person. (Note that there should be only a single dollar figure for each of the prosecution's value and cost determinations, even when different individuals determine the figures.)

    1. Commercial Value

      Describe the procedures carried out in determining commercial value (see above) in text that clearly and convincingly explains the method(s) used in making this determination. This text is extremely important because it provides the rationale for the commercial value determination method(s) and supports the commercial value table(s) developed for the determination. At the conclusion of this text, state the total figure for commercial value that is also shown in the commercial value table(s).

    2. Archeological Value

      Describe the procedures carried out in determining archeological value in text (or in the case of question 6, a table) that clearly and convincingly answers each of the seven questions asked in the procedures for determining archeological value (see above). This text is extremely important because it provides the rationale for the scientific information retrieval strategy and operations proposed to determine the archeological value figure and supports the archeological value table developed in making this determination.

      1. Identify the archeological resource involved in the violation in text that references the "Archeological Resource Description" section of the report.
      2. Describe the archeological resource damage in text that references the “Archeological Resource Damage” section of the report.
      3. Describe both the quantitative (scale) and qualitative (methods) approach projected to retrieve scientific information from the identified archeological resource prior to the violation.
      4. Describe how the scientific information retrieval strategy projected for the identified archeological resource is proportional, both quantitatively (scale) and qualitatively (methods), to the effect of the violation.
      5. Describe the operations that would be involved in the scientific information retrieval strategy projected for the identified archeological resource and the justification for each of these operations in text that clearly and convincingly explains what each operation is and why it would be necessary in terms of learning about the identified archeological resource. Show how any operations that appear similar to restoration and repair operations are included in the scientific information retrieval strategy for a different purpose (e.g. projected repatriation of NAGPRA items expected to be recovered in the scientific information retrieval strategy developed for the archeological value determination versus actual repatriation of NAGRPA items collected or seized as evidence as a component of restoration and repair).
      6. Present the archeological value table developed in making this determination.
      7. State the total figure for archeological value that is also shown in the archeological value table.
    3. Cost of Restoration and Repair

      Describe the procedures carried out in determining the cost of restoration and repair (see above) in text that clearly and convincingly explains what each emergency and projected restoration and repair operation is and why it is necessary to carry it out to restore and repair the archeological resource. This text is extremely important because it provides the rationale for the restoration and repair operations identified in determining the cost of restoration and repair figure and it supports the cost of restoration and repair table developed in making this determination. Show how any operations that appear similar to archeological value operations are included as part of restoration and repair for a different purpose (e.g. actual curation of non-NAGPRA items collected or seized as evidence versus projected curation of non-NAGPRA items expected to be recovered in the scientific information retrieval strategy developed for the archeological value determination). At the conclusion of this text, state the total figure for cost of restoration and repair that is also shown in the cost of restoration and repair table.

  6. Conclusions

    State the damage assessment report's conclusions. When figures have been developed for any or all of the three value and cost determinations, commercial value, archeological value and cost of restoration and repair, state these figures again in the Conclusions section.

  7. Summary

    Summarize the damage assessment report and its findings.

Summary and Conclusions

This technical brief has discussed the legal basis and methods for archeological resource damage assessment. Archeological resource damage assessments provide the information necessary to prove that the archeological elements of a criminal or civil violation of ARPA are met according to the requirements of the law and the judicial system. Three specific topics have been considered. First, the elements of an ARPA criminal or civil violation have been identified. Second, because of its importance to proving the ARPA violation and in conducting damage assessment, ARPA's definition of an “archaeological resource” has been presented. Finally, and most importantly, procedures for field damage assessment, value and cost determination and damage assessment report preparation have been recommended and explained. These procedures can be utilized to carry out these three components of the archeological resource damage assessment process.

Given its relationship to the law and the judicial system, the importance of the archeological resource damage assessment process cannot be overemphasized. The credibility of the archeological resource damage assessments produced for violations of ARPA will directly affect the outcome of these cases and the criminal or civil penalties imposed. Their importance is clearly demonstrated by the effect that the monetary determinations for archeological value, commercial value and cost of restoration and repair have on sentencing in criminal cases under the United States Sentencing Guideline that applies to ARPA and other federal crimes involving “Cultural Heritage Resources” (USSG § 2B1.5). Under this guideline, adopted by the United States Sentencing Commission in 2002, the sum of these three monetary determinations constitutes a “Specific Offense Characteristic,” a sentencing enhancement that increases the severity of the sentence as the total amount increases. (Note that this specific offense characteristic is based on the sum of all three values, archaeological value plus commercial value plus cost of restoration and repair, whereas the sections of the ARPA statute and the ARPA Uniform Regulations that apply to criminal and civil penalties allow consideration of only archaeological value plus cost of restoration and repair or commercial value plus cost of restoration and repair.)

Therefore, archeologists, government attorneys, and resource managers who become involved in archeological resource damage assessment for violations of ARPA must fully understand this process and how to carry it out correctly. It is hoped that this technical brief will be of assistance to them in this endeavor and in the protection and preservation of archeological resources.

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