Message #62:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Additional Information 
         - Lets Revise the Criminal Provisions of the AZ Antiquities Act
Date: Tue, 20 Feb 96 16:20:00 MST
Encoding: 290 TEXT


FACT SHEET FOR HB 2066 - HISTORIC SITE EXCAVATION

Purpose
Revises the Title 13 criminal provisions relating to the Arizona Antiquities 
Act (Title 41)  to provide a more consistent response to vandalism at 
historic sites situated on private property  and State-owned lands.  The 
bill provides private property owners with the same level of historic site 
protection currently afforded State-owned properties.

Background
The Title 13 criminal provisions of the Arizona Antiquities Act apply to 
historic sites on lands owned or controlled by the State of Arizona or any 
of its' agencies.  The current provisions state that if a person knowingly 
excavates an historic site on State land in violation of the provisions of 
the Arizona Antiquities Act, the person is guilty of a class 5 felony.  A 
person who knowingly collects any archaeological specimen in violation of 
the Act is guilty of a class I misdemeanor.

A 1993 superior court decision, State v. James Teague Sr., created ambiguity 
with respect to the application of the existing Title 13 criminal provisions 
relating to the Arizona Antiquities Act.  An Arizona ranching family 
reported on-going archaeological site vandalism on their leased lands (State 
Trust grazing lease).  A county sheriff s deputy apprehended a local man, 
Teague, and an
accomplice digging at the location of the site vandalism.  Teague admitted 
to excavating sites, but Teague's attorney later argued that a person must 
know they are excavating or collecting and that they are on State land.  The 
magistrate ruled that the phrase "knowingly" modified and applied to both 
the act of excavation, and the act of being present on State land.  The case 
was dismissed
because the State was unable to prove that Teague knew he was on State land. 
 An appellate court declined to hear the State's case.

House Bill 2066 clarifies existing protections to historic sites, and 
provides for a more consistent response to vandalism at historic sites 
situated on private property or State-owned lands.  By making all lands in 
Arizona protected from unlawful excavation and collection, the bill enhances 
private property rights for the private landowner, and eliminates an excuse 
for unlawful excavations and collections on State lands.  The bill applies 
only to unlawful excavations, in other words, excavations knowingly made 
without a pemiit or the permission of the landowner.  The bill provides that 
a person cannot claim as a defense that they did not know that they were on 
lands owned or controlled by the State or any agency of the State, or that 
they were required to obtain a permit.

House Bill 2066 treats separately the criminal provisions related to State 
lands and private property by providing separate subsections for each 
jurisdiction.  The classification levels of the criminal provisions are 
identical in each jurisdiction to promote a consistent response to the 
problem of illegal site excavation and vandalism.

House Bill 2066 defines terms associated with the excavation of historic 
sites and the collection of archaeological specimens.  The definitions are 
derived verbatim from statutes contained in the Arizona Antiquities Act 
(Title 4 1).  The restatement of these definitions in Title 13 will make the 
statute less ambiguous for enforcement personnel in the field.

Provisions
Repeals the current law relating to excavating certain sites and adds a new 
section relating to excavating historic sites.

Provides that a person who knowingly excavates any historic site on State 
land without a permit issued pursuant to Section 41-842, or without 
obtaining permission of the landowner except as provided in Section 41-865, 
is guilty of a class 5 felony.  A second or subsequent violation is a class 
3 felony.

Provides that a person who knowingly collects any archaeological specimen 
from State land without obtaining a permit pursuant to Section 41-842, or 
without obtaining permission of the landowner except as provided in Section 
41-865, is guilty of a class I misdemeanor.

Provides that a person cannot claim as a defense that they did not know that 
they were on lands owned or controlled by the State or any agency of the 
State, or that they were required to obtain a permit.

Provides that a permit granted pursuant to Section 41-842 constitutes 
permission by this State or an agency of this State that owns or controls 
the land.

Prescribes definitions in the Title 13 criminal provisions related to the 
Arizona Antiquities Act for the terms "archaeological specimen" and 
"historic site."

ADDITIONAL INFORMATION

In addition to the information I provided regarding my reasons for 
regulating collecting, if I were able to testify, here is what I would love 
to say to the House Judiciary Committee:

In Arizona, "archeology" is a career-making, sustainable income generating 
activity for private property owners, scientists, and cities and towns 
(e.g., examples of heritage tourism venues include Raven Site & Casa Malpais 
in Springerville; Shoofly Village in Payson; Elden Pueblo in Flagstaff; Besh 
Ba Gowah in Globe; Gatlin Site in Gila Bend; Yuma Crossing in Yuma; Romero
Ruin in Catalina; Homolovi in Winslow; Pueblo Grande in Phoenix; etc).

Heritage tourism is a major industry in Arizona, and provides cities and 
towns with tax revenue from sales receipts (provisions, restaurants, motel 
room rental, gasoline purchases, etc).

Ninety percent of Arizona's professional archaeologists are no longer in 
ivory towers; they work as free enterprise scientists in the information 
age.  Arizona is the cutting edge nationwide in terms of archaeological 
research, and public archaeology for education and profit.  Professional 
archaeologists, and cities and towns in Arizona, are heavily invested in the 
public to promote sustainable economic growth, education and better 
citizenship through heritage tourism venues.

The collaborative use of archaeological sites by professionals, the public, 
and cities and towns, make these resources a renewable resource--they 
generate income and educational opportunity year after year.

Archaeological vandalism destroys a site forever, making the resource 
non-renewable.

Therefore, it is good public policy to promote collaborative private 
enterprise, science, tourism and public use.

It is good public policy to deter site vandalism, for vandalism and theft of 
artifacts provides no tax revenue benefits, provides no educational 
opportunities, provides no scientific advancements, provides no physical 
continuation of the resource for future beneficial use, and quickly and 
ultimately removes resources from the local community and from Arizona.

SOME ADDITIONAL WAYS TO DESCRIBE THE BENEFITS OF THE PROPOSED BILL:

Private property protection bill--enhances private landowners ability to 
protect site in order to use site to genetrate income via heritage tourism 
venues, etc (e.g., Casa Malpais, Gatlin Site, Yuma Crossing, Colossal Cave, 
etc.)

Ties in nicely with the Govemor's Arizona Archaeology Advisory Commission 
goals to include the public, and encourage both non-profit and for-profit 
heritage venues in Arizona (e.g., recent commission document provides 
voluntary advice to landowners on how to develop sites)

Ties in nicely with State Parks and SHPO (heritage fund) grants to rural 
communities to create heritage tourism venues (brick & mortar grants), and 
promote heritage education.  Why should we allow a vandal to physically undo 
what federal and state grant money has preserved

Ties in nicely with the Site Steward program- volunteers engaged in 
promoting community awareness of Arizona's historic and prehistoric heritage

Positive on law enforcement and crime reduction (property crime reduction 
bill--thou shalt not steal) -- the bill allows local control; local 
authorities will deal with cultural resource theft issues at the local 
level, within the context of each local community.  A good way to keep 
outsiders from damaging a grazing lessee's range property, or, outsiders 
from coming into the local community to vandalize impportant private and 
community-held resources

Most site vandals are seasonal and deal in other illegal activities on a 
seasonal basis--game poaching, natural resource poaching, drug distribution, 
etc.  This bill can knock out the vandal's entire seasonal round of multiple 
illegal activities by removing lame excuses ('Gee, I didnt know I was on 
State Land") and the season's profit . By removing one leg of the seasonal 
round, the law
has potential to preempt other illegal activities (e.g., if you cant get 
together a big dollar grubstake by digging and selling prehistoric 
artifacts, you probably won't be able to fund the purchase of drugs and 
alcohol for personal use or for local resale to others) [we assert that 
illegal profits from pot hunting do not go into feeding, clothing and 
educating the pothunter's children; they go into more illegal activity]

Allows State to protect its State Land resource interests, and demonstates 
good management of cultural and natural resources and resource issues, all 
with no additional bureaucracy

Reasserts the State's control over resources on State Land; reduces the 
potential for physical disturbance/damage/erosion that may need to be 
'mitigated' by Risk Management funds.  Thus, the bill reduces the State's 
cost of land management.  The State Land Department can more fully manage 
the property to generate and maximize revenue for the school trust

Bill does not increase the regulatory environment for legitimate business 
(e.g. professional contract archaeologists, museums don't profit at the 
expense of business); inadvertent damage  to a site will not result in 
prosecution of a business (knowingly clause protects businesses)

Bill does not increase the existing statutory penalties for illegal 
activity.  Existing maximum penalty levels allow for appropriate 
plea-bargaining, and compelling probation requirements for persons convicted 
of violating the law.

SO WHAT DOES THE PROPOSED BILL REALLY MEAN ?

The purpose of the bill is to revise the criminal provisions to provide a 
more consistent response to vandalism.  With passage of HB 2066 as written, 
the law would become consistent across all jurisdictions.  Such consistency 
would result with fewer and more brief court cases, thus promoting a net 
savings for the taxpayer.

Under the proposed legislation, the collection provisions remain the same on 
State lands.  There is no increase in penalty, no increase in enforcement, 
no increase in bureaucracy or bureaucratic management.  The State 
prohibition against collecting has been in force since 1973.

The current prohibition against collecting on State lands does not include 
arrowheads coins or bottles, or items less than 100 years in age.  So, there 
is room in the current statute for collectors and hobbyists to enjoy their 
activities within certain parameters.

Under current law, persons who wish to access or collect materials over 100 
years old, may obtain a permit from the State Museum.  These permits are 
issued to researchers, but also to appropriate non-profit, avocational and 
amateur groups.  The State Museum and professional archaeologists, 
paleontologists and historians advise these groups regarding the educational 
components of their activities.

The Governor's Archeology Advisory Commission has prepared voluntary 
guidelines to assist private landowners use their resources wisely for 
education and for personal profit (heritage tourism, etc).  To allow someone 
to enter private or State property to surface collect artifacts (as 
currently prohibited) would promote economic loss and loss of valid 
educational opportunities.

The bill will provide private property owners with exactly the same level of 
historic site protection currently afforded State-owned properties.  In 
other words, the proposed revision provides a benefit to private property 
owners by helping them reassert control over their privately owned 
resources.  They would be able to expect a more consistent and effective 
response from law enforcement personnel.

Some buried sites only can be identified by the presence of a few or limited 
numbers of surface artifacts.  To allow people to collect artifacts would 
also create the potential for the site to completely "disappear." 
 Archaeologists "survey" properties to identify in advance of construction 
the presence of surface artifacts (and hence buried sites).  Surface surveys 
help private landowners and State agencies avoid sites.  Where sites are 
identified, landowners may be able to avoid them through project redesign or 
relocation, thus saving the cost of excavation, unintended discovery 
situations, and construction shut-downs that idle equipment and workers in 
the field.

To allow persons to collect a site means that previously undocumented urban 
sites will be stripped of surface artifacts, making them disappear.  These 
sites will then become problems for landowners when they are unintentionally 
discovered during construction.  Urban sites are at greatest risk of 
becoming a problem because of the proximity of development and people.

Only a small percentage of the sites in AZ have been documented, so 
collecting further obscures the record for developers and archaeologists, 
making projects potentially more expensive.

The prohibition against collecting artifacts over 100 years old will be 
enforced in each local community in Arizona according to community 
standards.  Based on historical precedent, it is highly unlikely that local 
residents and boy scouts will be charged for collecting violations because 
these are persons known within the local community; however, the law will 
allow law officers to
communicate with local citizens and teach respect for authority and property 
ownership rights.  The officers will be able to tell scouts and others to 
obtain permission from the land owner.  This strengthens community ties.

Law officers will be able to apprehend outsiders who are attempting to 
remove materials from the local community and region.  Thus, the law 
preserves a resource in place for the local community.  A prohibition 
against collecting on State and private lands retains local resources for 
future economic and educational benefit.

The prohibition against collecting on private property without the 
permission of the owner would apply to everyone equally, including 
professional archaeologists

ANECDOTAL INFORMATION

Between 1988 and 1993 there were 12 archaeological vandalism cases involving 
twenty individuals before the Arizona courts.  Of the twenty, all of whom 
were interviewed by myself, eighteen directly admitted to vandalizing sites 
in order find artifacts for sale.  Twelve admitted they dug to get a cash 
"grubstake" to purchase drugs and alcohol for themselves, or drugs for 
resale in their area.  In other words, site vandalism is a part-time or 
seasonal activity which funds additional illegal activity and prolongs the 
criminal and social irresponsibility of the vandal.  Site vandalism is not 
being engaged in simply to find cash to raise a family.

HB 2066 came about because Arizona ranchers, Richard and Nancy Seger of 
Winkleman, called and asked for assistance.  The State attempted to assist 
the Segers and Mr. Teague was apprehended.  He successfully beat the charges 
in court through doublespeak.

No vandalism cases have been brought in Superior Court in Arizona since the 
Teague case, and archaeological vandalism is on the rise.  Site vandals have 
spread the word to use the Teague defense to avoid prosecution for digging 
on State lands.