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


Notes

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1. P.L. 96-95, as amended by P.L. 100-555 and 100-588, 16 USC 470aa-mm (1988).

2. 16 USC 470ee.

3. 43 CFR Part 7, Department of the Interior; 36 CFR Part 296, Department of Agriculture; 18 CFR Part 1312, Tennessee Valley Authority; 32 CFR Part 229, Department of Defense.

4. LOOT Clearinghouse, reports of cases under ARPA and related laws, compiled by the NPS Departmental Consulting Archeologist, Archeological Assistance Division, Washington, D.C.

5. 16 USC 470gg.

6. In 1990, 20 individuals were charged with a total of 52 counts of civil and criminal violations of ARPA and other Federal and state laws, including National Oceanic and Atmospheric Administration regulations, at the Channel Islands National Marine Sanctuary. Extensive property was seized and $132,000 in fines was imposed. The first civil matter to utilize the ARPA civil process, as outlined in this document, was Eel River Sawmills, et al. v. U.S., Docket nos. ARPA 90-1 and 90-2, before the United States Department of the Interior Office of Hearings and Appeals, Hearings Division, Salt Lake City, Utah. The ALJ decision imposed a civil penalty of $43,500, against two of the three alleged violators. After initially filing an appeal of the ALJ's decision, the violators subsequently reached a settlement of the judgement with the Forest Service.

7. 16 USC 470ff.

8. 43 CFR Part 7(7) [52 FR 9165; 1987].

9. P.L. 100-555 and 100-588 (1988).

10. LOOT, supra, note 4. See also Technical Brief no. 11, June 1991.

11. TVA: Feb. 22, 1990; Dept. of Agriculture: Feb. 10, 1988.

12. Supra, note 6.

13. Administrative Procedures Act, P.L. 89-554 (1966), 80 Stat. 378, 5 USC 500-559; Administrative Hearings, 18 USC 556.

14. Criminal Fines Improvements Act of 1987, P.L. 100-185, 18 USC 3623, 101 Stat. 1279.

15. 16 USC 470ff; fines may be double the damage assessment amount for a subsequent offense (criminal or civil), see sec. 470ff(1)(B).

16. 16 USC 470gg(b)(3). (470gg(b)(1) & (2) require conviction by a court for an ARPA violation for a forfeiture while 470gg(b)(3) does not).

17. 36 CFR Part 296 (Forest Service); 50 CFR Part 27 (Fish and Wildlife Service); 43 CFR Part 7 (Interior); 32 CFR Part 229 (Defense); 18 CFR Part 1312 (TVA); 36 CFR Part 2 (NPS).

18. Criminal fines, unlike civil penalties, are deterrence or retribution, and a criminal defendant assessed a fine also may be subject to a civil penalty judgment. U.S. v. Ward, 448 U.S. 242, 250, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980). If a fine is assessed strictly as an alternative to incarceration, in the true sense of "punishment," and is not linked by the judge's order or the negotiations of counsel to the amount of the damage assessment, civil remedies are still available. If forfeiture is not considered in the criminal indictment or in a plea agreement, civil forfeiture remains an option.

19. 16 USC 470bb(3).

20. 16 USC 470bb(3) & (7).

21. 16 USC 470ee(c). See also U.S. v. Gerber, 999 F2d 1112 (7th Cir. 1993), affirming the conviction. Gerber and others were criminally charged under ARPA for removing archeological resources from private land and transporting the items across State lines. The defendants questioned the validity of 16 USC 470ee(c).

22. 16 USC 470bb(6).

23. 16 USC 470ff(a)(2)(civil) and 470ee(d)(criminal).

24. 16 USC 470bb(1).

25. 16 USC 470ff(3) and 470ee(g).

26. 16 USC 470kk(b) and 470bb(l).

27. Id.

28. 16 USC 470ee(a).

29. The contract will contain a paragraph within the document or as an addendum stating that Federal law prohibits the excavation, removal, damage, alteration or defacement of any archeological resource on Federal or Indian lands, that the contractor shall control the action of its employees and subcontractors at the job site to ensure that any protected sites will not be disturbed or damaged, and that it is the obligation of the contractor to ensure that employees and subcontractors cease work in the event of a newly discovered site until further authorization is obtained.

30. In Eel River Sawmills (supra, note 6), a contractor to the Forest Service was alleged to have damaged an archeological site when a road was built through a protected area to develop a water source. Eel River Sawmills claimed that its actions were inadvertent and that its agents did not see the flags marking the area. It also disputed jurisdiction and the method of calculating damages. The Forest Service contended that the contractor acted outside the scope of its contract because it is customary to develop water sources only with prior consultation with the contracting agency. Inadvertence is not a defense to a civil matter. No machinery was seized, and the land manager offered to resolve the matter at the initial hearing for an amount of damages that was less than the full damage assessment. A decision was issued on August 10, 1992. The parties agreed to a settlement of the judgement on January 19, 1993.

31. 16 USC 470ff(a)(2).

32. Title 18 CFR Part 1312.14(a).

33. Id., at 14(c).

34. 16 USC 470ff(a), and 18 CFR Part 1312.16.

35. 18 USC sec. 3623.

36. 16 USC 470gg(b).

37. 36 CFR Part 79, (effective Oct. 12, 1990).

38. H.R. Rep. No. 96-311, 96th Cong., 1st Sess. (1979), reprinted in 1979 U.S. Code Cong. & Ad. News, 1709, 1714; United States v. Kohl, no. 85-10044 (D. Idaho, Feb. 13, 1986), memorandum opinion.

39. Black, Henry Campbell, 1968, Black's Law Dictionary, 4th revised edition, West Publishing Co., St. Paul, MN, p. 1184.

40. 16 USC 470ff(a)(1).

41. H.R. Rep. No. 96-311, 96th Cong., 1st Sess., reprinted in 1979 U.S. Code Cong. Admin. News, 1709, 1714.

42. 43 CFR Part 7.15(b).

43. 43 CFR Part 7.15(b)(1).

44. 43 CFR Part 7.15(b)(2).

45. 43 CFR Part 7.15(b)(3).

46. 43 CFR Part 7.15(b)(4).

47. Title 28 USC sec. 1658, sets four years as the time to bring an action arising under an Act of Congress. The statute is effective on incidents occurring after the date of the Act, Dec. 1, 1990. The application of the statute of limitations is a matter to be discussed with counsel.

48. 43 CFR Part 7.15(c)(1).

49. 56 FR 55195 (Oct. 25, 1991).

50. 43 CFR Part 7.15(c)(2).

51. 43 CFR Part 7.15(c)(4).

52. 43 CFR Part 7.15(c)(3).

53. The Forest Service and the TVA request that counsel be involved at all stages.

54. 43 CFR Part 7.15(e)(3).

55. 43 CFR Part 7.15(e)(2).

56. 43 CFR Part 7.15(d).

57. 43 CFR Part 7.15(e)(2).

58. Supra, note 32, calculating damages.

59. 43 CFR Part 7.16(b)(1)(i-vii).

60. 43 CFR Part 7.15(f)(1).

61. 43 CFR Part 7.15(f)(2).

62. 43 CFR Part 7.15(f)(3).

63. 43 CFR Part 7.15(g).

64. 43 CFR Part 7.15(g)(2).

65. Department of the Interior Supplemental Regulations, 43 CFR Part 7.37(a) requires that a written statement of the basis for the relief accompany the request for hearing. All agencies with Memoranda of Agreement to use the Interior ALJs must follow the Supplemental Regulation procedures.

66. TVA, Memorandum of Agreement approved Feb. 1990. Service of notice on the TVA is to be made to: General Counsel, Tennessee Valley Authority, 400 West Summit Hill Drive, Knoxville, Tenn. 37902-1499. Forest Service notice shall be given to the Office of General Counsel, Department of Agriculture.

67. 43 CFR Part 7.37(a).

68. Id.

69. Supra, note 64.

70. 43 CFR Part 7.37(c).

71. 43 CFR Part 7.37(d)(2).

72. Supra, note 66.

73 43 CFR Part 7.37(d).

74. 5 USC 554-557, Rules of Procedure for Administrative Hearings.

75. 43 CFR Part 7.15(g)(3).

76. 43 CFR Part 7.37(e)(3).

77. 43 CFR Part 7.37(f).

78. Id.

79. 43 CFR Part 4 A, B & G.

80. 43 CFR Part 7.37(h).

81. 43 CFR Part 7.15(c)(4).

82. 43 CFR Part 7.15(c)(3).

83. 43 CFR Part.7.37(e)(3).

84. 43 CFR Part 7.37(f).

85. Prejudgment actions to preserve assets pending future judgments are part of an aggressive collection process. Individual State laws will control the available remedies.

86. The amount of interest on the judgment will be determined by the law of the State in which the judgment is ordered.

87. 43 CFR Part 7.15(1)(2).

88. Id.

89. The sum varies, depending on State law.

90. 16 USC 470gg(b).

91. id.

92. 16 USC 470gg(b)(2 & 3).

93. 16 USC 470gg(c).

94. 43 CFR Part 7.37(g).

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