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

Introduction The Archeological Resources Protection Act of 1979 (ARPA)1, as amended, provides a means to assertively protect the ancient and historic remains of the cultures that have inhabited Federal and Indian lands. The Act provides for criminal and civil penalties against those who excavate, remove, damage, or otherwise alter or deface archeological resources, or attempt to do so, without a permit.2 ARPA with its amendments and accompanying Uniform Regulations offer agencies flexible alternatives to employ in the preservation of resources under their protection.3 Criminal enforcement of ARPA has become an active part of the repertoire of agencies across the United States.4 It is not unusual for vehicles and the tools of the violation to be subjected to seizure in connection with the criminal prosecution.5 In contrast, civil prosecution under ARPA has been rarely and only recently pursued.6 The purpose of this technical brief is to provide a familiarity with the civil provisions of ARPA that may expand its future use. Background of the civil process Development of the civil law Cooperative agreements The civil advantage Agency policy determination Issues in the proof of a civil case Jurisdiction Identification Protection of archeological resources Authority of a permit Calculating the amount of damage Forfeiture Intent, a non-issue in actions based on negligence Procedural component of a civil case Report to the land manager Notice of the violation Respondent’s options Informal meeting Petition for relief and formal hearing Assessment of a penalty Administrative hearing Payment of the penalty Forfeiture of vehicles and tools Prognosis for use Endnotes Appendix A Appendix B Appendix