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


Procedural Component of a Civil Case

The decision whether or not to proceed in a civil ARPA case rests wholly within each individual agency and the designated divisions therein. ARPA gives the land manager, that is the designee of each Secretary or the head of a Federal land managing agency, the authority to initiate proceedings. Therefore, each Area or Park Superintendent, Forest Supervisor, or Base Commander may set policy to govern the option to proceed in house. Over time each division will develop policy that guides agents in the field so that they can determine whether the violation that confronts them should be handled civilly or criminally. Once a matter is submitted to the office of a U.S. Attorney the agency control is held in abeyance until the U.S. Attorney decides how the matter is to be handled and concludes its action. Those who investigate ARPA matters should not be overly concerned with what the land manager decides since the ARPA investigative work is the same regardless of how the case eventually will be handled.

The ARPA case begins with the determination by the land manager as to how to proceed. The following procedure applies when the decision is to proceed civilly and when forfeiture is a desired option. Also, after the conclusion of a criminal matter where actual monetary damages related to the disturbance of the site were not sought or negotiated in a plea agreement, or where forfeiture was not pursued, the land manager may proceed with the following civil process.

Report to the Land Manager
The agency law enforcement personnel, or investigative personnel in the case of the Corps of Engineers, will compile the ARPA case report. It will contain the information necessary to determine whether evidence exists for each of the issues of proof discussed above. The report also will contain a site damage analysis and the basis for archeological interest that places the site within the protection of ARPA. Photographs, maps, returns on search warrants, and descriptions of seized property will be included when they apply.

The use of legal support for the agencies varies. In most instances the land manager will decide how to proceed based on the report. In the Forest Service, policy now requires that the report be submitted to the office of General Counsel when civil action is contemplated so that an attorney may advise the land manager at each stage of the proceedings. The law does not require, and civil actions are not dependent upon, representation of the agency by counsel (see ALJ hearing below).

Notice of the Violation
Service: A civil action begins with the Notice of Violation which is served on each alleged violator. A corporation is served though a statutory agent who is listed with the Secretary of State. Personal service may be by a process server although the regulations allow service by registered mail, return receipt requested.42 All actions that follow will be predicated on the ability of the land manager to prove that actual service on the suspected violator has occurred.

Contents: The notice will be in letter form, signed by the land manager designee (Appendix A). It will contain a short statement of the facts that indicate what occurred, where, and how the alleged violator was involved.43 This brief statement is not a recitation of everything in the report. The notice letter will indicate whether the asserted violation occurred without a permit or outside the scope of a contract or employment agreement.44 The notice normally will state the amount of the proposed penalty, although the regulations allow the notice to be sent with an indication that the actual amount is to be ascertained and will follow in a separate notice. 45 Since the notice is not complete without a specific penalty amount stated, two separate letters may impact on the ability of the land manager to show proper service. There will be instances, however, when prompt notice will prevent further damage even though the site damage analysis is not complete.

The notice must advise the violator of the options (1) to discuss the matter informally with the land manager, (2) to file a Petition for Relief which will trigger the administrative law process, or (3) to take no action and receive a notice of final assessment.46 The notice will advise the alleged violator of the option to remit payment which will close all further proceedings. Finally, the notice must advise the alleged violator of their right to seek judicial review of all administrative determinations.

Timing: The Notice of Assessment should be served in a reasonable time after the incident is investigated. While there are no specified time limits, general principles of timeliness do apply. If the matter languishes until the evidence of the violation becomes obscured, it may be no longer appropriate to pursue the action. It is reasonable for several months to elapse while investigative work is being completed, and it may take time to find the alleged violators and to tie them to the scene. After four years an action may be prohibited.47 The 45 day period within which the alleged violator must respond does not begin until the receipt of the notice letter which contains the assessed penalty amount. Therefore the suspected violator may be notified of the asserted violation, but the obligation to respond would not begin until receipt of the second notice letter with a specific penalty.

Respondent's Options
Once the suspect, who is termed the respondent in a civil action, receives the notice one of four courses of action must be taken within 45 days. The first and most desirable option for both sides is the scheduling of a meeting with the land manager to informally discuss the asserted violation and the amount of damages.48 Such an informal discussion complies with the Presidential "Civil Justice Reform" order issued in October 1991.49 The intent of the Executive Order is that no formal litigation commence without an attempt to informally resolve the matter.

The respondent may bypass the land manager by filing with the land manager a Petition for Relief.50 This will place the matter before an ALJ to hear and decide. If the respondent accepts the damage amount and responsibility for the damages, the land manager may be paid in full or the respondent may notify the land manager in writing that the amount is acceptable.51 This acceptance of the civil penalty by the respondent, in writing, relieves the land manager of any obligation to send a second letter as a formal notice of assessment. If the respondent later reneges on the payment of the penalty, the land manager may obtain a court judgment and proceed to collect on the judgment (see judgment below). The respondent may take no action and await the notice of the final assessment from the land manager.52

Informal Meeting
When a request is made for an informal meeting within the 45 day period, the land manager is obligated to comply. This discussion may be attended by the respondent with or without counsel. The land manager may have present any personnel deemed necessary, which may include the investigator and the archeologist. Whether counsel is present for the government will depend upon the policy of each agency.53 The Office of Hearings and Appeals prefers the use of counsel at all times, since this furthers orderliness and due process.

During the informal discussion the respondent may try to impress the land manager that there is no responsibility or that the damages are too high. If a negotiated compromise is reached, it should be put in writing and signed by both the land manager and the respondent. This agreement will become the amount indicated in the notice of assessment. If no compromise is reached, the land manager still will prepare a Notice of Assessment.

If the land manager determines that no violation has occurred or that the respondent is not the responsible party, a written notice of that fact will be sent to the respondent indicating that no penalty shall be assessed.54 The land manager may determine that additional information is necessary, which will continue the investigation.55 When the additional information is received the land manager will then issue the Notice of Assessment. The regulations do not contemplate a second informal meeting after further investigation, but there is nothing in the regulations to preclude such action. If at the initial informal meeting the land manager determines that further investigation is warranted and if this further investigation reveals a good deal of new information that impacts the original Notice of Violation, the land manager could serve a second or amended Notice of Violation, and the process would begin anew.

Petition for Relief and Formal Hearing
The uniform regulations to ARPA provide for the respondent to request a formal hearing with the land manager.56 The Petition for Relief is a letter, which responds specifically to the Notice of Violation (Appendix B). This petition must be in writing and must be signed by the individual respondent or an authorized officer of a corporate respondent. It must be filed with the land manager no later than 45 days from receipt of the notice of violation. Although the uniform regulations do not resolve the possible problem of the running of the 45 days while informal negotiations are pending, it would seem reasonable that the 45 days to file a petition for relief be extended in writing when the respondent has requested and scheduled an informal meeting within the 45 day period. The petition for relief must indicate specifically the factual or legal reasons for any relief requested by the respondent. This document gives the land manager another opportunity to consider all issues before the determination of an assessment. The filing of a petition for relief does not entitle the respondent to a hearing with the land manager.

Assessment of a Penalty
The land manager will issue a written Notice of Assessment which is to be served on the respondent(s) in the same manner as the Notice of Violation (Appendix C). The assessment will be sent after the 45 day period has lapsed or at the conclusion of any informal meetings and the receipt of a timely Petition for Relief.

Determination of the Penalty Amount: If the alleged violator does not respond, the assessment may repeat most of the initial Notice of Violation. If a hearing or meeting has taken place, the Notice of Assessment must discuss the information presented at the hearing or meeting or furnished in the petition for relief.57 The penalty shall be assessed in accordance with the law and regulations discussed above.58 Nonetheless, the land manager may assess an amount that is less than the maximum calculations for reasons enumerated in the regulations. The assessment may be reduced if:

  1. the respondent agrees to return archeological resources taken from public or Indian lands, which agreement may extend beyond the items originally noticed;
  2. the person agrees to assist in preservation, protection, and study of archeological resources on public and Indian lands;
  3. the person will give information to assist in the detection, prevention, or prosecution of other violations of ARPA;
  4. first time offenders show a demonstrated hardship and inability to pay;
  5. there is no willful commission of the violation;
  6. the proposed penalty is excessive;
  7. the proposed penalty is unfair.59

Content of the Notice of Assessment: The Notice of Assessment will contain the facts and conclusions that resulted in the determination that a violation occurred and that the respondent committed the violation.60 It will indicate the basis for the assessment, including the site damage amount (doubled after the first offense), less any amounts due to mitigation for any reasons stated.61 The assessment shall advise the respondent of the right to an administrative hearing and provide the addresses of the appropriate administrative forum and the office of counsel for the agency. The notice shall state that the decision of the ALJ may be appealed administratively, and thereafter, judicial review of the final administrative decision may be sought in the appropriate United States District Court.62 Finally, the notice should advise the person that failure to request a hearing, in writing within 45 days, will result in a waiver of the right to a hearing.

Administrative Hearings
Request for a Hearing: Within 45 days of the receipt of the Notice of Assessment the respondent must request a hearing or the right is deemed to be waived.63 The request must be in writing and accompanied by a copy of the Notice of Assessment.64 The regulations do not indicate specifically that a Petition for Relief be included with the request, but it would be appropriate for the respondent to indicate the specific aspects of the assessment with which exception is taken.65 The request may be delivered in person or sent by registered or certified mail, return receipt requested. It is important for the respondent to show proof that a hearing request was timely. The regulations allow the person to deliver the request personally and thus save the cost of a process server. The addresses for delivery of the notice are given in the Notice of Assessment.

Administrative Law Judges: The ALJs function within and are part of the Executive Branch. They are not part of the Federal court system. Not every agency employs ALJs, and until recently a civil ARPA case may not have been an option. By Memorandum of Agreement the Forest Service and the Tennessee Valley Authority (TVA) have removed this impediment.66 The following description will track the process before the Hearings Division, Office of Hearings and Appeals, Department of the Interior.

ALJ Process: The Department of the Interior ARPA Supplemental Regulations specify the documents to be mailed to the Hearings Division, Office of Hearings and Appeals, Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203-1954, with the request for a hearing.67 The request must be in writing and dated. It must include a copy of both the Notice of Assessment and the Notice of Violation. Further, "the request shall state the relief sought, the basis for challenging the facts used as the basis for charging the violation and fixing the assessment. . . ."68 Therefore, the request establishes the issues for the hearing. In addition the respondent may indicate preferences as to the place and date for the hearing.

A copy of all documents sent to the ALJ must be sent to the legal counsel for the agency that initiated the procedure. For example, if the agency is within the Department of the Interior, the Solicitor of the Department must receive a copy personally or by registered or certified mail, return receipt requested. Forest Service matters will be handled by its Office of General Counsel, and TVA matters will be handled by its General Counsel.69 The respondent must serve notice to the office listed in the Notice of Assessment.

Once a specific ALJ is assigned to the case, all communications are sent directly to that judge. Copies of all documents sent to the ALJ must be sent to the other party.70

Representation by Counsel and Appearance at a Hearing: Each Department's policy states when counsel will appear on its behalf at ALJ hearings. Currently the offices of General Counsel for the Forest Service and the TVA prefer to be involved in ARPA civil proceedings at each stage of the process. This is strongly recommended by the ALJs. The Department of the Interior Supplemental Regulations provide that the departmental counsel designated by the Solicitor officially will enter the case once an assignment is made to a specific ALJ for hearing.71 Thus the land manager will receive the request for hearing from the respondent and the notice of the ALJ assignment and then forward the entire case file to the appropriate Solicitor's or General Counsel's office. Thereafter the attorney assigned the matter will be responsible for determining that all documents have been filed with the ALJ. The rules for the ALJ hearings do not require that either party be represented by an attorney.72 The Interior Supplemental Regulations allow for the appearance at a hearing of the party in person, by a representative, or by counsel.73 If the respondent fails to appear at the hearing and there is no good cause for the absence, the ALJ then will make a decision without a hearing based on the documents provided.

Conduct of a Hearing: The rules for a hearing before an ALJ are more relaxed and abbreviated than the rules of procedure in a Federal district court.74 Testimony under oath will be heard by the ALJ from the witnesses for each side. Each side will have an opportunity to question each witness. A transcript of the proceeding will be made. Exhibits such as maps, titles to vehicles, and archeological materials may be submitted to the ALJ. The ALJ will consider the evidence and the briefs filed and render a decision. There is no jury. The decision will be in writing and will specify findings of fact and conclusions of law upon which the decision is based. The ALJ is not limited to the determinations made by the land manager in the Notice of Assessment. Based on the evidence produced at the hearing, the ALJ may increase or decrease the assessment.75

Final Order and Administrative Appeal: The decision of the ALJ becomes final 30 calendar days after the written ruling is sent to the parties, unless in the case of Department of the Interior land managers either the respondent or the land manager files a Notice of Appeal within 30 days.76 A "Notice of Appeal" is a brief statement of intent to appeal, and it is mailed to the Director, Office of Hearings and Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203-1954.77 Copies must be mailed to the other party and to the judge who rendered the decision. The Notice of Appeal must have attached to it an affidavit that the copies were sent.78 An Ad Hoc Board of Appeals will be appointed by the Director, Office of Hearings and Appeals, pursuant to 43 CFR Parts 4.l(b)(4) and 4.700, to decide the appeal. The appellate review is not a repeat of the first hearing.79 The appeal panel will consider the matter on the record compiled by the ALJ and supplemented by briefs in support of the appeal and oral argument if necessary. The appeal panel will issue a written decision, which constitutes the final administrative determination of the matter.80 It may be subject to judicial review in the appropriate Federal district court. If the administrative order is not appealed it will be final and collectable.

The administrative appeal panel will determine if there are facts to support the ALJ's decision, if all of the procedural aspects of the process were in compliance, and if the ALJ's decision complies with the law. A Federal district court judge presented with a Petition for Review of the administrative appeal panel will consider only the specific issues designated by the party who pursues the appeal. This judge will not substitute a new opinion for one supported by evidence. The predominant issue on appeal may be a claim by the respondent that he or she was not properly served or was denied due process.

Payment of the Penalty

Payment of an assessment is due:

  1. when the respondent receives a Notice of Violation and opts to pay in full without further discussion;81
  2. 45 days from the receipt of the Notice of Assessment from the land manager and the respondent does not request a hearing; 82
  3. 30 days after the decision of the ALJ and the respondent does not file a Notice of Appeal with the Office of Hearings and Appeals; 83
  4. 45 days after the appeals board issues a decision and a final assessment and the respondent does not appeal to a Federal district court84; or
  5. the Federal district court issues an order affirming the final administrative decision.

If at any point the respondent does not pursue the available process, the penalty is deemed to be accepted, and payment becomes due. Given the usual time delays, a respondent may postpone payment for a period of time. Although the civil process does not provide an instant remedy and fast payment, it is still less cumbersome than obtaining financial redress through the criminal process. During this time if it appears that the respondent may be dissipating assets or frustrating the possibility of collecting on a judgment, steps may be taken by the appropriate office of the U.S. Attorney who will handle collection.85 Under normal circumstances the agency will refer the matter to the U.S. Attorney for collection when the penalty is not paid. In some cases, such as the TVA, agency counsel will pursue collection.

A final penalty becomes a judgment, which is a court-ordered demand for payment of a set amount. The judgment will accrue interest at the highest legal rate.86 To obtain payment on the judgment from a respondent who does not voluntarily pay requires a second tier of legal actions. The office of each U.S. Attorney contains a collection division to pursue payment of judgments owed to agencies of the Federal Government. The collection attorney will file a copy of the judgment in the district in which the respondent lives, transacts business, or can be found and served.87 Liens may be placed on properties owned by the respondent, and any income may be garnished. If there is no collection attorney available, civil collection actions may be initiated directly.88 Some of the costs of collection will be added to the amount owed by the respondent.89 In a collection action the debtor may not attack the amount of the judgment, the basis for the judgment, the calculation of the penalty, or ask that the judge go behind the judgment to examine the reasons for the judgment. If, however, the judgment is defective due to a procedural omission, the judgment may not be enforced.

Penalties collected from incidents occurring on Indian lands are paid to the appropriate tribal entity. All other funds collected above the costs of collection are paid to the agency bringing the action. How these funds are allocated within the agency is a matter of internal agency policy.

Forfeiture of Vehicles and Tools
Items Subject to Forfeiture: Materials excavated or taken from Indian and Federal lands will be seized, as they are the property of the Indian or Federal landowner.90 The person from whom the materials are seized may be given a receipt for these items as a matter of record keeping. Property, including vehicles and tools, that belongs to the alleged violator and is used in the commission of the asserted violation is subject to forfeiture.91 These items may be seized and held at the time of the asserted violation. They are to be released either to the owner or to the seizing agency depending on the outcome of the forfeiture action.

Each agency and the land manager determine whether to pursue forfeiture. Even though forfeiture may be a legal option, the condition of the item or the lien on the item may make forfeiture undesirable. Forfeiture may be negotiated by the land manager in the informal meeting or hearing process.

Forfeiture Procedure: Items may be forfeited civilly by inclusion in the Notice of Violation as part of the demand or as an action against the item itself.92 If the Notice of Violation served on a respondent contains the appropriate language, the forfeiture becomes an integral part of the civil penalty process (Appendices A & C). If at any time the forfeiture is not appealed or preserved in the civil process outlined above, the item becomes the property of the agency or the Indian tribal entity if the violation occurred on Indian lands.93 If the items to be forfeited are not associated with a person, the government may file an in rem judicial action, which is an action against the thing. Notice is published in a newspaper that the described items are subject to forfeiture, and any interested persons must come forth or lose their ability to claim the items. The in rem action is filed in the Federal district court where the items were found. The determination by the court that the items were used in an ARPA violation is sufficient to award the property to the government or tribal entity. If someone appears to contest forfeiture, the individual has the burden of proving lawful ownership, and connection with or knowledge of the violation must be dispelled. Even if the lawful owner had no actual part in the ARPA violation, the item still will be forfeited if the owner knew or should have known how the item was to be used.

Prognosis for Use
If there is a correlation to be drawn to the growth of ARPA criminal actions, once the civil prosecution process is known, its use could expand significantly. Civil actions will not replace all criminal prosecutions for ARPA violations that have become commonplace nationwide. Similarly, citations issued under the various agency CFRs still will be appropriate. However, where financial recoupment of damages is the desired result, the civil process is waiting to be used.

This brief is intended to assist in the use of the civil law. To keep updated on civil ARPA matters, copies of decisions in civil penalty proceedings may be obtained by a written request to the Director, Office of Hearings and Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22303-1954. There may be a fee for this service.94

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