Message #61:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Should We Revise Criminal Provisions of AZ Antiquities Act?
Date: Wed, 14 Feb 1996 21:17:36 -0700 (MST)
Mime-Version: 1.0


Here are the existing criminal provisions of the Arizona Antiquities Act:

ttp://www.azleg.state.az.us/ars/13/3702-01.htm

13-3702.01. Excavating certain sites; collecting certain specimens;
classification

A. A person who knowingly excavates in violation of section 41-841,
subsection A without
obtaining a permit as required under section 41-842 is guilty of a class 5
felony. A second orsubsequent violation under this subsection is a class 3
felony.

B. A person who knowingly collects any archaeological specimen in violation
of section 41-841,subsection B, is guilty of a class 1 misdemeanor.
.....................................................................

Please compare ARS 13-3702.01 with the language of HB - 2066.  Below,

HB2066, was my 1995 attempt to close a few loopholes in the law especially,
after inability to go to trial and prosecute James Teague in Gila County
Superior Court for unauthorized archaeological site
excavation["pothunting"]).  Many colleagues worked long hours to promote the
adoption of HB2066.  Nonetheless, HB2066 died and was not inacted by the
legislature in 1995.

 A January 9, 1996 letter sent to me by House Speaker Mark Killian strongly
encouraged reintroduction of the bill.  All well and good as we probably
could pass the bill in the AZ House !  However,  HB2066 failed in the AZ
Senate in 1995, and the Senators who blocked the bill from a floor vote are
present still. ( If you want to know gory details, please call me).

Some legislative retirements have been announced and November 1996 is an
election year.
Will the wise protection of Arizona's non-renewable archaeological resources
and patrimony be enhanced by legislative action as the State continues to
grow in population?

I solicit your opinion as to whether you think there would be strong
archaeological communityand strong public support for passage of a bill
which would make appropriate improvements tothe criminal code of the AZ
Antiquities Act.

NOTE:  I am NOT asking if you like or dislike the wording of HB2066.  Be
advised, HB2066 was wisely drafted to make an incremental and subtle change
which might have great benefit for the protection of non-renewable
archaeological resources on State and private lands in Arizona.  It would
prevent people like Teague from claiming he cannot be tried under the
existing statute because he didnt know he was on State Trust land when he
was caught red-handed digging an archaeological site, and cannot be tried
because the State would be unable to prove that he knew he was on State
Trust land (a mental state or condition).
...........................................................

http://www.azleg.state.az.us/cgi-bin/waisgate?WAISaction=3Dretrieve&WAISdoc
ID=3D266279223+0+0+0

HB2066
Reference Title: historic site excavation
AN ACT

REPEALING SECTION 13-3702.01, ARIZONA REVISED STATUTES; AMENDING TITLE 13,
CHAPTER 37, ARIZONA REVISED STATUTES, BY ADDING A NEW SECTION 13-3702.01;
RELATING TO EXCAVATING HISTORIC SITES.

Be it enacted by the Legislature of the State of Arizona

Section 1. Repeal

Section 13-3702.01, Arizona Revised Statutes, is repealed.

Sec. 2. Title 13, chapter 37, Arizona Revised Statutes, is amended by adding
a new section 13-3702.01, to read:

13-3702.01. Excavating historic sites; classification; definitions

A. A PERSON WHO IS ON LANDS THAT ARE OWNED OR CONTROLLED BY THIS STATE OR AN
AGENCY OF THIS STATE AND WHO KNOWINGLY EXCAVATES ANY HISTORIC SITE WITHOUT
OBTAINING A PERMIT  AUTHORIZING THE EXCAVATION PURSUANT TO SECTION 41-842 IS
GUILTY OF A CLASS 5 FELONY. A SECOND OR SUBSEQUENT VIOLATION UNDER THIS
SUBSECTION IS A CLASS 3 FELONY.

B. A PERSON WHO IS ON LANDS THAT ARE OWNED OR CONTROLLED BY THIS STATE OR AN
AGENCY OF THIS STATE AND WHO KNOWINGLY COLLECTS ANY ARCHAEOLOGICAL SPECIMEN
WITHOUT OBTAINING A PERMIT AUTHORIZING THE COLLECTION PURSUANT TO SECTION
41-842 IS GUILTY OF A CLASS 1  MISDEMEANOR.

C. EXCEPT AS OTHERWISE PROVIDED IN SECTION 41-865, A PERSON WHO IS ON LANDS
OTHER THAN LANDS THAT ARE OWNED OR CONTROLLED BY THIS STATE OR AN AGENCY OF
THIS STATE AND WHO KNOWINGLY EXCAVATES ANY HISTORIC SITE WITHOUT OBTAINING
THE PERMISSION OF THE LANDOWNER IS GUILTY OF A CLASS 5 FELONY. A SECOND OR
SUBSEQUENT VIOLATION UNDER THIS SUBSECTION IS A CLASS 3 FELONY.

D. EXCEPT AS OTHERWISE PROVIDED IN SECTION 41-865, A PERSON WHO IS ON LANDS
OTHER THAN LANDS THAT ARE OWNED OR CONTROLLED BY THIS STATE OR AN AGENCY OF
THIS STATE AND WHO KNOWINGLY COLLECTS ANY ARCHAEOLOGICAL SPECIMEN WITHOUT
OBTAINING THE PERMISSION OF THE LANDOWNER IS GUILTY OF A CLASS 1 MISDEMEANOR.

E. IT IS NOT A DEFENSE TO A CHARGE OF A VIOLATION OF THIS SECTION THAT THE
PERSON DID NOT KNOW THAT THE PERSON WAS ON LANDS THAT ARE OWNED OR
CONTROLLED BY THIS STATE OR AN AGENCY OF THIS STATE OR THAT THE PERSON WAS
REQUIRED TO OBTAIN A PERMIT. A PERMIT THAT IS GRANTED PURSUANT TO
SECTION41-842 CONSTITUTES PERMISSION BY THIS STATE OR AN AGENCY OF THIS
STATE THAT OWNS OR CONTROLS THE LAND.

F. FOR THE PURPOSES OF THIS SECTION:

1. "ARCHAEOLOGICAL SPECIMEN" MEANS ANY ITEM THAT RESULTS FROM PAST HUMAN
LIFE OR ACTIVITIES AND THAT IS AT LEAST ONE HUNDRED YEARS OLD,INCLUDING
PETROGLYPHS,  PICTOGRAPHS, PAINTINGS, POTTERY, TOOLS,ORNAMENTS, JEWELRY,
TEXTILES, CEREMONIAL OBJECTS, WEAPONS, ARMAMENTS, VESSELS, SHIPS,
VEHICLESAND HUMAN SKELETAL REMAINS. ARCHAEOLOGICAL
SPECIMEN DOES NOT INCLUDE ARROWHEADS, COINS OR BOTTLES.

2. "HISTORIC SITE" MEANS ANY HISTORIC OR PREHISTORIC RUIN, BURIAL GROUND,
ARCHAEOLOGICAL OR VERTEBRATE PALEONTOLOGICAL SITE, OR SITE INCLUDING
FOSSILIZED FOOTPRINTS, INSCRIPTIONS MADE BY HUMAN AGENCY OR ANY OTHER
ARCHAEOLOGICAL, PALEONTOLOGICAL OR HISTORICAL FEATURE.
.........................................

I appreciate your thoughtful consideration and timely correspondence.  All
comments and discussions will be held confidentially and not published on  
the WWW.  I hope to hear from both the public-at-large, and the professional 
and avocational archaeological community of Arizona and the Greater Southwest.

Brian Kenny
kenny@getnet.com
kenny@planning.mcdot.maricopa.gov
azarch@aztec.asu.edu
business cards/phone numbers at:
http://www.swanet.org/bkenny.html