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

Published by the DOI Departmental Consulting Archeologist/NPS Archeology Program, National Park Service, Washington, DC, February 2007.

Foreword, by Francis P. McManamon, Chief Archeologist, NPS; Departmental Consulting Archeologist, DOI

This technical brief describes and explains the archeological resource damage assessment process. The legal foundation for and the necessity of archeological damage assessments is described, as are the procedures for field damage assessment, value and cost determinations, and report preparation. Archeologists, attorneys, and law enforcement specialists involved in investigations of crimes against archeological resources must understand clearly the archeological resource damage assessment process and how to carry it out correctly. The credibility of these damage assessments directly affects the outcome of legal cases and the criminal or civil penalties imposed.

In November 2002, a new sentencing guideline issued by the United States Sentencing Commission became effective. This document, entitled, "Cultural Heritage Guideline," provided the federal judicial system with consistent, rational procedures for developing potential sentences for those convicted of crimes involving cultural heritage resources, including various kinds of archeological resources. Prohibited activities include, among other things, damage to or destruction of archeological resources, unauthorized removal of artifacts, features, or other components from protected sites, theft, and illegal trafficking.

The cultural heritage guidelines make use of the concepts of "archeological value," "commercial value," and "the cost of restoration and repair." All of these terms, as they are used in a formal legal context, are defined either in the Archaeological Resource Protection Act (ARPA), the federal law that most directly protects archeological resources, or the regulations that implement this law. Since ARPA, which became law in 1979, has been enforced, the ways in which these concepts and terms have been used has developed through their application in individual cases. After 25 years of practical use of these concepts, the synthesis of what had been learned through individual cases into a set of standards was warranted. Such general standards would be of use to archeologists, attorneys, and law enforcement personnel in federal agencies assigned to ensure effective prosecution of archeological resource looters, traffickers, and vandals.

In addition, the development and publication of the new sentencing guideline emphasized the need for standards because use of the guideline by judges throughout the federal judicial system meant that more judges, including those who might have had little or no familiarity with archeology or archeological resources, would be using these specialized concepts. Professional standards describing how archeological value calculations should be developed would serve two purposes. First, they would provide justification for a consistent set of procedures and guidelines for professional archeologists who conduct archeological damage assessments and calculate archeological value for specific legal cases. Secondly, the standards would provide an objective basis for judgment of the legitimacy of the damage assessments used in prosecutions of those accused of crimes against archeological resources. Judges would determine whether the standards had been followed when they evaluated the procedures used to reach archeological value amounts provided by the prosecution in specific cases.

The Society for American Archaeology (SAA), an organization dedicated to the research, interpretation, and protection of the archaeological heritage of the Americas, with the support of the National Park Service, assembled a group of public and private sector and academic archeologists, government attorneys, and law enforcement experts to develop these needed standards. The group met in a workshop in March 2003. They drafted the standards at the the workshop and refined the drafts during the following months. In November 2003, the Board of Directors of the SAA reviewed and approved as official, "Professional Standards for the Determination of Archaeological Value." This technical brief is designed to provide additional guidance for the use of the standards, drawing on decades of experience in archeological resource protection.

Introduction

The criminal and civil penalty sections of the Archaeological Resources Protection Act (16 USC 470aa-mm; ARPA) require the assessment of damage to archeological resources that are harmed by unauthorized acts. Archeological resource damage assessment uses the methods of archeology to 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 (see Figure 1). The assessment of damages to archeological resources in archeological violation cases cannot be carried out without reference to these legal requirements. In other words, archeological resource damage assessments require both archeological expertise and adherence to legal requirements.

(diagram)

Figure 1: This diagram represents the relationship of Archeological Resource Damage Assessment to Archeology and to the Law and Judicial System. (Figure developed by Assistant United States Attorney Wayne Dance, Department of Justice, District of Utah. Used by permission.)

The purpose of this technical brief is to describe and explain the archeological resource damage assessment process. The legal basis of archeological resource damage assessment is presented by identifying the elements that must be proven for the prosecution of either a criminal or civil violation of ARPA. The Act's definition of an “archeological resource” also is discussed because it is a critical component of the elements of a violation and is a central issue in damage assessment. The remainder of the technical brief describes and explains the three components of archeological resource damage assessment: (1) field damage assessment; (2) value and cost determinations; and (3) archeological resource damage assessment report preparation. Procedures are recommended for accomplishing each of these damage assessment components.

Archeological Elements of an ARPA Criminal Violation

Black's Law Dictionary (2005:559) defines “elements of crime” as, “The constituent parts of a crime that the prosecution must prove to sustain a conviction”. The archeological elements of an ARPA criminal violation come directly from the statute:

Readers should note that the maximum fines for Class A misdemeanor and felony violations of federal law by individuals were increased to $100,000 and $250,000 respectively by the Criminal Fines Improvement Act of 1987 (see 18 USC § 3571(b)); maximum fines for Class A misdemeanor and felony violations by organizations are $200,000 and $500,000 respectively. As a result, these are now the maximum fines for Class A misdemeanor and felony violations of ARPA, even though the original and lower ARPA fine amounts are shown in § 470ee(d).

Thus, the six elements that must be proven for a felony violation of § 470ee(a), as supplemented by § 470ee(d), are:

The subsections of § 470ee prohibiting the unlawful trafficking of archeological resources, § 470ee(b) and § 470ee(c), have distinct elements that must be proven. These elements are not dealt with here because they do not affect the damage assessment process.

Elements 1, 3, and 6, are archeological elements that require archeological information, either in whole or in part, to prove each of them. Exclusively archeological information is necessary for the proof of Element 1. Element 3 requires both investigative information on how the violation occurred and archeological information on the nature of the archeological resource damage involved in the prohibited act or acts. Element 6 requires archeological information for the archeological value and cost of restoration and repair determination and both archeological and appraisal information for the commercial value determination. Elements 2, 4 and 5 can be proven without archeological information.

Archeological Elements of an ARPA Civil Violation

ARPA civil violations are subject to the assessment of an ARPA civil penalty. ARPA civil violations also have elements that must be proven. The archeological elements of an ARPA civil violation again come directly from the statute:

Substantial portions of the text of the prohibited acts and criminal penalties section of the ARPA statute (see above) are restated in the ARPA Uniform Regulations, Section __.4(a)-(c) so that a civil penalty may be assessed for a violation of this section of the statute and its reference to “any prohibition contained in an applicable regulation.”

Once the civil violation is proven, the violator is subject to the assessment of an ARPA civil penalty, the maximum amount of which will be the sum of archeological value and the cost of restoration and repair, or the sum of commercial value and the cost of restoration and repair.

The elements that must be proven for the assessment of a civil penalty under § 470ff are the same as for a criminal violation of § 470ee, with the exception of element 5 (criminal intent) and element 6 which is only relevant to criminal proceedings. As in the case of the criminal violation elements, elements 1 (archeological resource), 3 (prohibited acts), as well as the value and cost determinations, are archeological elements that require archeological information to prove each of them.

Readers should note that the text of the ARPA Uniform Regulations is, as their title implies, uniform. Due to the organization of the Code of Federal Regulations (CFR), the ARPA uniform regulations appear in four different locations within the CFR. The text of the ARPA regulations is identical, but the numbering is different depending on the department or agency that the regulations cover. Specifically, for the Department of the Interior the numbering is 43 CFR Part 7, for the Department of Agriculture it is 36 CFR Part 296, for the Department of Defense it is 32 CFR Part 229, and for the Tennessee Valley Authority it is 18 CFR Part 1312. For example, Section __.4(a)-(c) of the regulations would be found at 43 CFR Part 7.4(a)-(c) for Department of the Interior agencies, such as the National Park Service and the Bureau of Land Management, and at 36 CFR Part 296.4(a)-(c) for Department of Agriculture agencies, such as the Forest Service. References to sections of the ARPA Uniform Regulations in this Technical Brief use a department-neutral format (e.g. “Section __.4(a)-(c)”).)

Archeological Resources Protected by ARPA

ARPA's definition of an “archaeological resource” is:

The terms “material remains” and “archaeological interest” are defined in the ARPA uniform regulations:

The ARPA uniform regulations also includes a list of examples of “classes of material remains” considered to be archeological resources (Section __.3(a)(3)(i-x); see Appendix A).

Field Damage Assessment

Field damage assessment is carried out to obtain information about damage to an archeological resource or resources involved in a potential violation of ARPA or other applicable statutes. The assessment is conducted at the location of this damage and is part of the overall investigation at the scene of the violation. Typically, the damage location is an archeological site, but violations may occur that do not involve sites, such as theft of isolated artifacts or theft from curation facilities or museums. The resulting information about the damage will be used in both the value and cost determinations and in the archeological resource damage assessment report that will be developed as part of case preparation. Four operations must be completed in carrying out field damage assessment. The procedures use basic archeological data collection methods.

  1. Identification of the archeological resource damage locations:
    1. Identify all damage locations.
    2. Attempt to distinguish new damage locations from old damage locations, if the latter are present.
  2. Identification of the archeological resources damaged and the damage to them:
    1. Identify the archeological resources protected by ARPA or other statutes at the damage locations (refer to the ARPA definition of an archeological resource [see above] and the ARPA uniform regulations examples of the “classes of material remains” considered to be archeological resources [see Appendix A]).
    2. Identify the damage to these resources in terms of the acts prohibited by ARPA (see above).
  3. Measurement of the amount of archeological resource damage:
    1. Make accurate tape measurements of the amount of damage, unless other, more sophisticated quantification methods are available (see 3b.). To meet forensic standards of documentation, make as complete a series of measurements as possible given the time available. Either metric or English standard measurements (e.g. inches, feet, yards) may be used, but metric measurements of damage must be converted to standard measurements in the damage assessment report. Note that if the damage has extended below the surface of a site, depth measurements are important. Sufficient measurements should be made to calculate the volume of damage.
    2. Use other more sophisticated methods to quantify the amount of damage, such as total station or 3D laser scanning. More detailed measures such as these may be employed to complete an assessment, following the initial use of tape measurements.
  4. Documentation of findings:
    1. Take accurate and complete notes on all aspects of the field damage assessment process.
    2. Photograph the damage locations, the archeological resources damaged and the damage to them.
    3. Map the damage locations.
    4. Documentation should be as detailed and objective as possible.

Value and Cost Determination

ARPA identifies three monetary determinations as the measures of the severity of harm to the archeological resource(s) involved in either a criminal violation or a civil violation of the statute. These monetary determinations are:

As is indicated by the definitions of these terms in the ARPA uniform regulations (see below), all archeological violation cases that involve damage to in situ archeological resources require both archeological value and cost of restoration and repair determinations.

Archeological violation cases may or may not involve a commercial value determination. Commercial value derives from collector interest in archeological resources. Archeological resources that have collector interest will have a fair market value, while those that are not of interest to collectors will not have a market value. A commercial value determination is not necessary when the archeological resources involved in a violation are not of collector interest and do not have a fair market value. When there is collector interest in the resources and a resulting fair market value, then a commercial value determination is required. (Note that market value does not necessarily mean the exchange of cash, but can also include the exchange of goods, i.e., barter. For example, artifacts may be traded for drugs or other artifacts as well as for money.)

The tables referred to in the following sub-sections on “Commercial Value,” “Archeological Value” and “Cost of Restoration and Repair” and the “Archeological Resource Damage Assessment Report Preparation” section may be developed at any point in the process of making the value and cost determinations and preparing the resource damage assessment report. Typically, they are prepared as a component of the determinations and prior to writing the report text, but this is not required.

Readers should note that there are some basic and highly important concerns in the ARPA value and cost determination process. First, speculation is not permissible. Second, and following from the first point, values or costs included must be fully justifiable in terms of being either incurred or projected on an actual and reasonable basis. Third, values or costs for the same operation must not be included twice or "double counted" in the value and cost determinations. When operations appearing to be the same or similar are included in different aspects of a value and cost determination, their differing purposes must be fully explained. Examples of issues related to these concerns will be provided in the discussion of commercial value, archeological value and cost of restoration and repair.

Commercial Value

“Commercial Value” is defined in Section __.14 of the ARPA uniform regulations:

Commercial value. For the purposes of this part, the commercial 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 its fair market value. Where the violation has resulted in damage to the archaeological resource, the fair market value should be determined using the condition of the archaeological resource prior to the violation, to the extent that its prior condition can be ascertained (Section __.14(b)).

Black's Law Dictionary (2005:12944) defines “fair market value” as, “The price that a seller is willing to accept and a buyer is willing to pay on the open market ”. Note that the definition requires the commercial value of damaged archeological resources to be determined only in this damaged condition unless it can be show that the damage was caused by the violation.

Procedures for Determination of Commercial Value.

The following procedures can be used to determine commercial value. These procedures should be carried out by an expert on the fair market value of the archeological resources involved in the violation. In most cases, the archeological resources of commercial value will be artifacts such as modified stone, ceramic, wood, glass, or metal, but they also may be archeological features or components of archeological features that have been removed, such as rock art panels or rock art boulders. Intact artifacts such as whole pots and unbroken bottles definitely have commercial value, but, in today's marketplace, even items such as pottery sherds, broken points, and lithic flakes can have commercial value. Typically, an archeologist will be identified who has or will develop this expertise, but a commercial insurance or estate appraiser who has knowledge of archeological resource market values also may be used. The determination should be based on the most current fair market values of the archeological resources for the time period when the violation occurred.

  1. Identify any archeological resources that are evidence in the case that have interest to collectors of archeological resources and, therefore, commercial value.
  2. Determine (or have a commercial appraiser determine) the current fair market value of these items from appropriate commercial value sources (see below).
  3. Develop a commercial value table or tables showing the fair market value of each item and the total commercial value figure (see Figure 2 for an example).

A commercial value determination should not include a value figure for an archeological resource that is assumed to have been removed but was not actually recovered. This would be speculative. Only archeological resources that are evidence in the case and can be examined during any legal proceedings should be considered in a commercial value determination.

Figure 2: Example of a Commercial Value Table (reproduced from McAllister 1999:10-13; Note that “grades” applied to artifacts are based on definitions in Robert M. Overstreet's Overstreet Identification and Price Guide to Indian Arrowheads.)

Artifact Commercial Values by Sequential Artifact Photo Numbers
Photo Number Point or Artifact Type Grade Commercial Value
01 Pinto 8 $125
02 Humboldt Base Notched 8 $150
03 Pinto, Stemmed 8 $175
04 Elko Base Notched 9 $150
05 Drill 4 $15
06 Rose Spring 6 $20
07 Rose Spring 7 $25
08 Pinto 7 $25
09 Rose Spring 7 $25
10 Elko 7 $25
11 Desert Side Notched 5 $8
12 Rose Spring 7 $45
13 Rose Spring Side Notched 7 $45
14 Rose Spring 7 $25
15 Pinto 7 $30
16 Desert Side Notched 7 $20
17 Elko Base Notched 7 $35
18 Desert Side Notched 7 $20
19 Northern Side Notched 6 $65
20 Elko Eared 8 $50
199 Un-typable Point 1 $0
200 Side Notched 2 $5
205 Side Notched 2 $5
209 Side Notched 2 $3
215 Side Notched 3 $7
221 Elko Corner Notched 2 $5
228 Side Notched 2 $5
229 Side Notched 3 $8
234 Scraper 5 $8
236 Scraper 5 $8
247 Side Notched 2 $5
248 Elko Corner Notched 3 $8
250 Elko Corner Notched 2 $5
TOTAL COMMERCIAL VALUE $4,636

Commercial Value Sources. The following are examples of commercial value sources:

Note that the Internet may or may not be useful in determining the commercial value of archeological resources. Its usefulness depends upon how much information is available on the market value of specific types of archeological resources. Sometimes there is no information and, in other instances, there may be too much information. Often, artifact price guides and artifact collector publications are more useful sources of information on commercial value.

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