The Archaeological Resources Protection Act of 1979 (ARPA)1, as amended, provides a means to assertively protect the ancient and historic remains of the cultures that have inhabited Federal and Indian lands. The Act provides for criminal and civil penalties against those who excavate, remove, damage, or otherwise alter or deface archeological resources, or attempt to do so, without a permit.2 ARPA with its amendments and accompanying Uniform Regulations offer agencies flexible alternatives to employ in the preservation of resources under their protection.3
Criminal enforcement of ARPA has become an active part of the repertoire of agencies across the United States.4 It is not unusual for vehicles and the tools of the violation to be subjected to seizure in connection with the criminal prosecution.5 In contrast, civil prosecution under ARPA has been rarely and only recently pursued.6 The purpose of this technical brief is to provide a familiarity with the civil provisions of ARPA that may expand its future use.
Background of the Civil Process
Development of the
It is now time to explore the use of the other ARPA prosecution, the civil prosecution. The use of the civil option will not replace criminal prosecution. Rather, those incidents that for one reason or another do not merit criminal prosecution will become the subject of the civil process. These are the incidents that have been overlooked although they are no less important in the effort to preserve and protect archeological resources.
The Civil Advantage
Burden of proof: In a criminal trial the prosecutor must prove the defendant guilty beyond a reasonable doubt. This is a substantial burden, which calls upon jurors to feel as comfortable about their decision as they would in making a decision in the more important affairs of their daily life. Punishment is not to be discussed in a criminal trial, but the jurors know that their verdict could impact the liberty of the defendant. The standard of proof in a civil case is one of a preponderance of the evidence. That is a tipping of the scales in favor of the claim being made.
Non-Jury Trials: A criminal defendant who faces a significant loss of liberty (six months or more) is guaranteed a jury trial. This fundamental right is not an issue in civil matters, which are tried before an ALJ outside of the jury trial process, since the only loss is monetary. Civil penalties may include a prohibition from entering a Federal or Indian enclave or may require some constructive activity but will never include incarceration. Administrative proceedings are therefore less time-consuming, less expensive, and less formal.13 To convict a criminal defendant the twelve member jury must reach a unanimous verdict. To find that the civil defendant is responsible the agency must convince the ALJ that the facts are complete. ARPA criminal trials also may be interesting instructive sessions that educate the jury and instill in them an understanding for the law and reasons to care about archeological sites. Every jury trial, however, carries the ever-present possibility of error and a mistrial requiring a repeat of the process. In contrast the civil hearing is simple and direct.
Optional Use of Lawyers: Depending on its policy, the individual agency is not necessarily represented by an attorney at an ALJ hearing. A case may be presented by the law enforcement agent and the archeologist. Therefore, if criminal prosecution of ARPA is declined by the U.S. Attorney's office in the appropriate district, the agency is not foreclosed from taking action against an alleged violator. In a civil case the defendant is not entitled to representation by a lawyer as a matter of constitutional right. The defendant may obtain counsel or proceed in proper persona, on behalf of one's self, but the agency does not bear the cost of the defendant's legal representation.
Civil Penalties Versus Fines: In a criminal prosecution, in addition to or in lieu of a period of confinement, the defendant may be ordered to pay a fine. The fine also may replace a prison term. Fines have two limitations: first, they may not exceed $100,000 for a misdemeanor conviction and $250,000 for a felony conviction, and second, they are paid not to the agency but to the general fund of the U.S. Treasury.14 Restitution may be paid to the agency in an amount deemed appropriate by the judge after considering everything else levied against a defendant and the ability of those held responsible to pay. Penalties in a civil proceeding are assessed based on the actual damages proven at the hearing.15 These assessments become judgments that may be collected directly by the agency or the Indian tribal authority affected by the violation.
Agency Discretion: A criminal case presented to the office of the local U.S. Attorney transfers decision making authority to that office. Depending on the policy of each district office the recommendations of the Assistant U.S. Attorney to whom the case is assigned will usually determine whether to prosecute, whom to prosecute, when, and for what offenses. That office will determine whether to forfeit items and what items to forfeit. Although the Assistant U.S. Attorney will consult with the agency through the law enforcement agent, the office of the U.S. Attorney makes decisions in plea bargaining and prosecution resolution. In a civil proceeding the agency never loses total control over the presentation of the case. Negotiations prior to judicial resolution are handled by the agency area manager, who has been delegated the authority by each respective Secretary or agency official.
Agency Policy Determination
There are other options beyond criminal or civil prosecution under ARPA alone. It is possible to seize the tools and vehicles used in a violation without the prosecution of an individual.16 Each agency has published regulations in the Code of Federal Regulations (CFR) that prohibit various activities that apply to the protection of sites managed by that agency.17 All of the pre-ARPA options available to land managers still exist. ARPA merely adds to those options. However, if an individual is cited prematurely under a CFR section that protects archeological resources, and if the individual quickly enters a plea of guilty to that violation before the nearest magistrate, the agency will be prevented from proceeding further under ARPA, criminally or civilly. To do so would constitute double punishment. The agency may still bring an action to forfeit a vehicle or tools used in the commission of the offense.
Avoiding Double Punishment: Once the agency submits a case for criminal prosecution, the agency loses control of the case until and unless the U.S. Attorney issues a declination letter indicating a decision not to proceed. If the criminal case does proceed but the sentence does not include forfeiture, the agency may still seek forfeiture in a separate civil proceeding. Forfeiture is available under ARPA if the defendant is cited for a CFR violation rather than an ARPA violation.
It is important to realize that if a criminal case is negotiated by an Assistant U.S. Attorney and if the negotiations include financial considerations, either as a fine based on the damage amount or as restitution, the agency may not later assess a civil penalty against the defendant. This would amount to double punishment. When a defendant in a criminal case is sentenced to pay a fine in lieu of incarceration and the amount of the fine is based upon an amount calculated to deter future violations, civil prosecution remains an option.18