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.