In the Dixie National Forest case, U.S. Forest Service archaeologist Stan McDonald followed the procedures established by the ARPA Uniform Regulations (43 CFR part 7) in determining figures of $27,502.18 for archaeological value and $8,430.29 for cost of restoration and repair, for a total damage figure of $35,932.47. In the Dixie Resource Management Area case, BLM archaeologist John Herron also used the ARPA procedures to determine figures of $6,736.00 for archaeological value and $1,231.18 for cost of restoration and repair, for a total damage figure of $7,967.18.
In Judge Jenkins' written opinion on Hunter's sentencing, the judge stated, ". . . the Court finds that the calculations supplied by the United States are unreliable and overstate the archaeological value associated with Hunter's unlawful activities . . . Instead, the offered archaeological value presents a fiction" (November 4, 1998, Memorandum Opinion, p. 17). Judge Jenkins arrived at this finding despite the fact that SAA Task Force on Archaeological Law Enforcement chair Martin McAllister, the nationally recognized expert on archaeological damage assessment, testified in the sentencing hearing that archaeologists McDonald and Herron had carefully followed the ARPA procedures for determining archaeological value.
As an alternative to archaeological value, Judge Jenkins concluded, ". . . an additional $2,000 should be added to the cost of restoration and repair [$9,661.24 for the two sites] to reflect . . . [aesthetic] diminishment at the sites . . . [so] the total `loss' for sentencing purposes is $11,661.47" (November 4, 1998, Memorandum Opinion, p. 8). Judge Jenkins' ruling not only substitutes the questionable "aesthetic diminishment" figure for archaeological value that is legally established by ARPA and the ARPA Uniform Regulations, but also challenges the ability of professional archaeologists to reliably identify costs for the retrieval of scientific information about the past, which is the principle on which the concept of archaeological value is based.
In response to this situation, Assistant U.S. Attorney Wayne Dance, District of Utah, who prosecuted the ARPA case against Hunter, is requesting an appeal of Judge Jenkins' sentence by the U.S. Department of Justice. To express SAA support of the appeal, the following letter was sent to the Solicitor General of the United States.
January 5, 1999|
Honorable Seth P. Waxman
Dear Mr. Waxman:
In the recent U.S. v. John C. Hunter case in the District of Utah, which involved violations of the Archaeological Resources Protection Act (ARPA), U.S. Senior District Judge Bruce S. Jenkins found that the use of "archaeological value" figures in this case, "presents a fiction" (see page 17 of Judge Jenkins November 4, 1998, Memorandum Opinion). The Society for American Archaeology believes that this opinion and the resulting sentencing of Mr. Hunter were in error for the following reasons.
First, the concept of "archaeological value" is statutorily established by ARPA which states that:
Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: provided however, that if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500 such person shall be fined not more than $20,000 or imprisoned not more than two years, or both [16 USC 470ee(d)].Second, the manner in which "archaeological value" will be determined is legally established by the ARPA Uniform Regulations which state that:
For the purpose of this part, the archaeological value of any resource involved in a violation [of ARPA] shall be the value of the information associated with the archaeological resource. This value shall be appraised in terms of the costs of the retrieval of the scientific information which would have been obtainable prior to the violation. These costs may include, but need not be limited to, the cost of preparing a research design, conducting field work, carrying out laboratory analysis, and preparing reports as would be necessary to realize the information potential [ARPA Uniform Regulations Section .14(a)].Third, professional archaeologists routinely determine the costs of retrieval of scientific information ("archaeological value") in response to requests for proposals to conduct archaeological excavations on a contract basis. In this respect, archaeology is no different than any other discipline which projects the costs to conduct the work which qualified professional practitioners of that discipline are proposing to undertake.
For these reasons, the Society for American Archaeology strongly recommends an appeal of Judge Jenkins' sentence in the U.S. v. John C. Hunter case. This sentence is not only inadequate given the circumstances of the ARPA violations which Mr. Hunter committed, but also may set what the Society sees as an inappropriate precedent for ignoring the important concept of "archaeological value" in determining sentences in future ARPA cases.
Vincas P. Steponaitis
Beneva B. Weintraub
Francis P. McManamon
Donald Forsyth Craib is manager of government affairs and counsel for the Society for American Archaeology.