Civil Prosecution Process of the Archaeological Resources Protection Act

16 Pages·1994·1.2 MB·English

by  Hutt, Sherry

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3 1604 019 774 118 U.S. Department ofthe Interior Technical BriefNo. 16
National Park Service v»L£A^SO/V February 1994
Cultural Resources 4/ERAPy ISSN 1057-1574
Departmental CotisiAlting ArcheoiogisT'',***Archeological Assistance
The Civil Prosecution Process of the
Archaeological Resources Protection Act
SherryHutt,Judge, SuperiorCourt, Maricopa County, Arizona
This TechnicalBriefdetailstheprocedureforpursuing forth in statutes, whereas the civil process depends
acivilviolationofARPAthroughtheadministrativelaw upon descriptive regulations. Although ARPA became
process.Itspurposeistoprovideasuccinctblueprintfor law on October 31, 1979, the Uniform Regulations
usebylandmanagingagencieswhencivilprosecution were not adopted until January 6, 1984. The Depart-
under the law is the desired option. Note that in the ment ofthe Interior Supplemental Regulations, which
event ofanydiscrepancy between this TechnicalBrief are an integral part of the process, were promulgated
andapplicableARPA regulations, the regulationscon- in 1987. Bythetimethecivil processwasacompleted
trol. Citationsinthisbriefwilldepartfromthestandard package, agencies were actively training law enforce-
American Antiquitystyle infavor ofthe legalcitation mentpersonnel andarcheologists to enforcethecrimi-
formatusedbylawyersandAdministrativeLawfudges. nalaspectsofthe law. Prioritywasgiventothosecases
that merited criminal prosecution and much time was
Introduction spent preparing those cases to overcome reluctant
prosecutorswhowere unfamiliarwiththe law. In 1988
The Archaeological Resources Protection Act of 1979 ARPA was amended to establish a $500 threshold for
(ARPA) as amended, provides a means to assertively felony prosecution, in place of the previous $5000
, threshold, and ARPA criminal prosecutions grew in
protectthe ancient and historic remains ofthe cultures
numberrapidly. Since 1988, successfulARPAcriminal
that have inhabited Federal and Indian lands. The Act
prosecutions have been reportedwithsomefrequency
wprhooviedxecsavfaortec,rirmeimnoavlea,nddacmiavigle,penoarltoitehserawgiasienstalttehrosoer throughoutthecountry. ExperiencedARPAprosecu-
deface archeological resources, or attempt to do so, tors, while in great demand, are no longer rare.
waictchoomuptanayipenrgmitU.nifAoRrPmARewgiutlhatiitsonasmeonffdemrenatgesncaineds It is now time to explore the use of the other ARPA
flexible alternatives to employ in the preservation of prosecution, the civil prosecution. The use ofthe civil
option will not replace criminal prosecution. Rather,
resources under their protection."
those incidents that for one reason or another do not
Criminal enforcement of ARPA has become an active merit criminal prosecution will become the subject of
the civil process. These are the incidents that have
part of the repertoire of agencies across the United
been overlooked although they are no less important
States. It is not unusual for vehicles and the tools of
in the effort to preserve and protect archeological
the violation to be subjected to seizure in connection
resources.
with the criminal prosecution. In contrast, civil prose-
cution under ARPA has been rarely and only recently
Cooperative Agreements
pursued. The purpose of this technical brief is to
provide a familiarity with the civil provisions ofARPA In order for an agency to proceed in a civil matter it
that may expand its future use. musthaveaccesstoanAdministrativeLawJudge(ALJ).
The Department ofthe Interior Office ofHearings and
Background ofthe Civil Process Appeals is ideally suited to the task, but not every
agency is similarly staffed. The lack of an agency ALJ
Development ofthe CivilLaw impeded active civil enforcement for agencies outside
of the Department of the Interior. That problem has
ARPA provides for civil penalties and outlines a de- now been rectified with the issuance of Memoranda
scription ofdamage calculation to determine a penalty of Agreement with Interior executed by the Forest
assessment. Criminal violations are specifically set Service and the Tennessee Valley Authority.11 One of
the first civil ARPA cases to utilize the InteriorALT was but the agency does not bear the cost of the defen-
brought by the Forest Service.12 dant's legal representation.
The CivilAdvantage CivilPenalties VersusFines: In a criminal prosecution,
in addition to or in lieu of a period of confinement,
There are a number of reasons to favor civil prosecu-
tion over criminal. Some of these are inherent in civil the defendant may be ordered to pay a fine. The fine
also may replace a prison term. Fines have two limita-
procedure regardless ofthe particular substantive law.
tions: first, they may not exceed $100,000 for a misde-
meanor conviction and $250,000 for a felony
BurdenofProof: Inacriminaltrial the prosecutormust
conviction, andsecond, theyarepaidnottotheagency
provethedefendantguiltybeyondareasonabledoubt.
Tfeheilsaiss acosmufbosrtatnatbilaelabbuorudtent,hewihridcehcicsailolns uaspothnejyuwroorusltdo btiuotntmoatyhebgeenpeariadltfoutnhdeoafgtehnecyU.iSn.aTnreaasmuoruyn.t dReesetmiteud-
appropriate by the judge after considering everything
in making a decision in the more important affairs of
else levied against a defendant and the ability ofthose
their daily life. Punishment is not to be discussed in a
ccroiumlidnailmptaricatl,thbeutlibtehretyjoufrotrhsedkenfoenwdatnhta.tTthheeirstvaenrddaircdt ahreeldarsessepsosnesdibblaesetodpoany.tPheenaalcttiueaslidnaamcaigvielsprporcoeveedninagt
the hearing. These assessments become judgments
of proof in a civil case is one of a preponderance of that may be collected directly by the agency or the
the evidence. That is a tipping ofthe scales in favor of
Indian tribal authority affected by the violation.
the claim being made.
Non-fury Trials: A criminal defendant who faces a Agency Discretion: A criminal case presented to the
office of the local U.S. Attorney transfers decision
significant loss of liberty (six months or more) is making authority to that office. Depending on the
guaranteed a jury trial. This fundamental right is not
policy of each district office the recommendations of
an issue in civil matters, which are tried before an ALT the Assistant U.S. Attorney to whom the case is as-
outside of the jury trial process, since the only loss is
mfornoemtaernyt.eriCinvgilapeFneadletriaels omrayIndiinacnludeencalapvreohoirbimtiaoyn wsihgonemdtwoilplrousseucaultley,wdehteenr,miannedwfohrewthhaetrotfofepnrsoesse.cTuhtae,t
require some constructive activity but will never in- officewill determinewhetherto forfeit items andwhat
items to forfeit. Although the Assistant U.S. Attorney
clude incarceration. Administrative proceedings are
will consult with the agency through the law enforce-
thereforelesstime-consuming, lessexpensive, andless
ment agent, the office of the U.S. Attorney makes
formal. To convict a criminal defendant the twelve
member jury must reach a unanimous verdict. To find decisions in plea bargaining and prosecution resolu-
tion. In a civil proceeding the agency never loses total
that the civil defendant is responsible the agency must
control over the presentation ofthe case. Negotiations
convince the ALT that the facts are complete. ARPA
criminal trials also may be interesting instructive ses- aprrieoarmtaonjaugdeicri,alwrheosolhuatsiobneaernedhealnedglaetdedbythetheauathgoernictyy
sions that educate the jury and instill in them an
by each respective Secretary or agency official.
understanding for the law and reasons to care about
archeological sites. Every jury trial, however, carries
Agency Policy Determination
the ever-present possibility of error and a mistrial
requiring a repeat of the process. In contrast the civil The agency area manager, or equivalent officer, deter-
hearing is simple and direct. mines whether to maintain a case for civil prosecution
or to refer the matter to the U.S. Attorney's office for
Optional UseofLawyers: Depending on its policy, the criminal prosecution. The number of ARPA violation
individual agency is not necessarily represented by an investigations hasgrowntoapointthatnowmayallow
attorney at an ALJ hearing. A case may be presented the agency area manager to establish policies for the
by the law enforcement agent and the archeologist. referral ofa case. This informationwill assist the agent
Therefore, ifcriminal prosecution ofARPA is declined in the field to properly direct their reports and to
by the U.S. Attorney's office in the appropriate district, involvetheappropriatelawyer, U.S.Attorney,Solicitor,
the agency is notforeclosed fromtakingaction against Office ofGeneral Counsel or JudgeAdvocate General.
an alleged violator. In a civil case the defendant is not It will also assist the first contact officer in the field in
entitled to representation by a lawyer as a matter of determining which option should be employed.
constitutional right.Thedefendantmayobtaincounsel
or proceed inproperpersona, on behalf of one's self,
Thereare otheroptions beyondcriminalorcivil prose- the violation to Federal or Indian lands is when an
cution under ARPA alone. It is possible to seize the otherwise protected item is obtained in violation of a
tools andvehicles used in aviolationwithoutthe prose- State or local law and then transported in interstate
cution of an individual. Each agency has published commerce.
regulations in the Code of Federal Regulations (CFR)
that prohibit various activities that apply to the protec- Anypersonwhocommits a prohibitedacton the lands
tion of sites managed by that agency. All of the under the jurisdiction ofARPA is liable under the law.
pre-ARPAoptionsavailabletolandmanagersstillexist. Person is defined as "an individual, corporation, part-
ARPA merely adds to those options. However, if an nership, trust, institution, association, or any other
individualiscitedprematurelyunderaCFRsectionthat private entity or any officer, employee, agent, depart-
protects archeological resources, and ifthe individual ment, or instrumentality of the United States, of any
quickly enters a plea of guilty to that violation before Indian tribe, or of any State or political subdivision
the nearest magistrate, the agency will be prevented thereof." The description of person is important to
from proceeding further under ARPA, criminally or note in the context of a potential civil action because
civilly. To do so would constitute double punishment. the type of "person" will more often be broadly
Theagency maystill bringan actiontoforfeitavehicle construed than in the typical criminal case. For exam-
or tools used in the commission ofthe offense. ple, a corporation that is not charged in a criminal
ARPA indictment nonetheless may find itself facing
Avoiding DoublePunishment: Once the agency sub- civilARPA charges. The reason for the difference may
mits a caseforcriminal prosecution, the agencyloses be found in the intent exhibited by the violator. Intent
control ofthe case until and unless the U.S. Attorney is discussed below.
issues a declination letter indicating a decision not
to proceed. Ifthe criminal case does proceedbut the Identification
sentence does notincludeforfeiture, the agencymay
In all cases, the "person" to be held accountable must
still seek forfeiture in a separate civil proceeding. be identified. This may be a direct identification, as in
Fisorcfietietdureforis aavaCiFlRablveioulnatdieornArRaPthAeriftthhaendaenfeAndRaPnAt asccerniem.inIanl caascei,viwlhcearsee tthheeviaolllaetgoerdisviooblsaetorrvemdaayt tbhee
violation.
identified as the "person" responsible for the care and
control of a site such as the private contractor who
It is important to realize that if a criminal case is allows a protected area to be bulldozed. The alleged
negotiated by an Assistant U.S. Attorney and if the violator also may be a business that allowed equip-
naefgionteiabtaisoensdionncltuhdeedfianmaancgiealacmoonsuindteroartiaosnsr,esetiitthuetiroan,s mkennotwttohebeusreenptleadnnifedthfeorfitrhme keqnueiwpmoernhta(dsereeainstoennt)t.o
the agency may not later assess a civil penalty against More than one person may be held responsible, al-
the defendant. This would amount to double punish-
ment.Whenadefendantinacriminalcaseissentenced tmehnotu.ghDieraecchtomrsayofhcaovrepohraadtiaodnisffaenrdentevleevnelgoovfeirnvnomlevnet-
to pay a fine in lieu of incarceration and the amount employees are not immune from civil liability.
ofthefineisbaseduponanamountcalculatedtodeter
future violations, civil prosecution remains an op-
18 Protection ofArcheological Resources
tion.
Under ARPA the protected items are the same in both
Issues in the Proofofa Civil Case civil and criminal prosecutions. Archeological re-
sources are those material remains of past human life
where there is sufficient material remaining to extract
Jurisdiction
scientific data. The ability to gain information about
Civil andcriminal prosecutions have the same jurisdic- pasthumanlifefromthematerial remainsisreferenced
tional basis. That is, for the law to apply, Federal or in the law as "archeological interest." The items also
Indian lands must assertedly have been impacted by must be over 100 years old.
the alleged violator. Indian lands include lands of
Alaska Native Village corporations and Native Hawai- Fxpressly excepted from the protection ofARPAis the
ian as well as trust lands subject to a restriction on collection of arrowheads found on the surface of the
alienation. Federal lands include those in Puerto Rico, ground. Although technically protected, as a practi-
Guam, and the Virgin Islands or any lands held in fee cal matter "arrowhead" includes any object thatwould
title bythe United States.20Theonlyexception to tying
appear to the common person to be an arrowhead damaged." This is another aspect ofcase preparation
even if it is actually a spear point or a scraper. To be that is dependentwholly upon the archeologist acting
protected the stone point must be totally subsurface. as an expert witness. Commercial value of an object
Generally, unworked minerals, rocks, and paleon- may be determined by the price placed on the object
tological (fossil) specimens are not protectedbyARPA by the alleged violator, the going price of similar
unless they have evidence of human interaction. objects offered for sale, or by research in collector
However, where these items are found within an catalogs. Archeological value is described in the Uni-
archeological site theyare protected iftheycan render form Regulations as the cost ofscientific data recovery
clues to the past human existence. The proof of this that would have been attainable prior to the violation
issue will rely on the expert testimony ofan archeolo- in an area that is adjacent to the violation site, and that
gist. Similarly, coins and bullets are not protected isofcomparable size.""Itassumes thatthedisturbance
unless they are found in a direct physical relationship has created a situation of forced excavation even
with an archeological site, such as in a battlefield 27 though no furtherdata recoverymayoccurin the near
future. It enables the agency to arrive at a dollar
Authority ofa Permit amount of damage even though the actual loss of a
Where the person holds a valid ARPA or comparable nonrenewable resource is priceless.
permit and acts within the permit, there can be no
Added to the archeological damage or commercial
violation. Any lawful excavationwill be overseenby
an individual holding the permit. Government con- valueisthecostofrestorationandrepair.This includes
tracts and government employment status may take the actual costs ofreconstruction orstabilization ofthe
the place of an ARPA permit because they act as archeological resource, surface stabilization, research
tocarryoutstabilization, physicalbarriersorprotective
authority to undertake the activity obligated by the
devices to guard against further disturbance, analysis
contract or within the scope of employment. Govern-
of the remaining archeological materials, reinterment
ment contracts do not excuse the obligation to act
of human remains, curation, and the preparation of
srehsopuolndsibcloyn,taianndARaPllAgloavnegrunagmee.nt cGoonvterarcntmsenwtillemo-r reports necessary to do any ofthe above activities.
ployees and volunteers working with the government
Damages as Civil Penalties: In a civil ARPA case the
do not need a permit. However, iftheiractions exceed damage amount becomes the actual amount that may
the scope of the job they may face civil sanctions.
be assessed to the person or persons found to be
ARPAviolations may still be perpetrated by the holder raemsopuonnts.ibWleh.enThtehreereiasrenosubmsienqiuemnutmvioorlatmiaonxsibmyuma
of a permit or government contract where the action
taken exceeds the authority of the document/ This person, the amount of the damages assessed is dou-
bled." In no situation may the person be assessed
may occur if unnecessary excavation takes place or if morethandoubletheactualdamageamount.Theland
the contractor or permittee strays from the designated
managerdoes have the discretion in the negotiation of
area.
a civil penalty amount prior to an administrative
hearing to reduce the assessed penalty. When the
Calculating the Amount ofDamage
violation is so egregious that the damage assessment
Civil and criminal archeological site damage calcula- as a sanction is insufficient, then criminal prosecution
tions are conducted in the same manner, but the may be the more appropriate course of action. The
application ofthe information varies. Damage calcula- criminal law provides for incarceration and penalties
tions in civil actions become the penalty amount, over and above the actual damage amount. However,
whereas in criminal actions the amount of damage the maximum fine in a criminal action against an
determines the severity of the crime, and the damage individual is $250,000 and against a corporation is
may be a factor in sentencing. A criminal defendant $500,000.^ It is possible for civil penalties to exceed
may be ordered to pay the damage amount as restitu- these limitations.
tion to an agency.
Forfeiture
dQeutaenrtmiifyniendgbDyamcaalgceusl.atiTnhgethaemoaurnctheoolfogtihcealpednaalmtaygies As part ofthe civil proceeding, the ALJ may order that
archeological resourcesinthepossessionoftheperson
to the area or the commercial value of the materials
and adding cither, but not both, to the cost ofrestora- and all vehicles and equipment which were used in
the violation be forfeited.' ' All items which were
tion and repair of the materials or the area that was
forfeited by order of the ALJ and that involved viola- Procedural Component
tions that originated on Indian lands are to be turned ofa Civil Case
over to the Indian or Indian tribe affected. Where
Indian interests are notaffected, theitems are forfeited Thedecisionwhetherornotto proceedinacivilARPA
to the United States. Agencies receiving forfeitedvehi- case rests wholly within each individual agency and
cles and tools place them into agency use. Native the designated divisions therein. ARPA gives the land
American human remains are subject to repatriation manager, that is the designee ofeach Secretary or the
wherever they are found, and non-repatriated items head ofa Federal land managingagency, the authority
are subject to curation under the Federal curation to initiate proceedings. Therefore, each Area or Park
37
regulations. Superintendent, Forest Supervisor, or Base Com-
mandermaysetpolicytogoverntheoptiontoproceed
Intent, a Non-Issue inActions in house. Over time each division will develop policy
Based on Negligence that guides agents in the field so that they can deter-
In every criminal action the intent of the defendant minewhethertheviolationthatconfronts themshould
mustbe proven. The criminal statutewilleithercall for be handled civilly or criminally. Once a matter is
the government to prove the specific intent of the submitted to the office of a U.S. Attorney the agency
allegedwrongdoerorshow general intent. That is, the control is held in abeyance until the U.S. Attorney
government must show that the defendants actually decideshowthematteristobe handledandconcludes
knew they were doing wrong and persisted in their its action. Thosewho investigate ARPA matters should
actions, or that they knew what they were doing not be overly concerned with what the land manager
though they may have had no knowledge ofthe law. decides since the ARPA investigative work is the same
The ARPA criminal statute is a general intent law/ In regardless of how the case eventually will be han-
a civil case intent is a not an issue. A person may be dled.
liable civilly even if the person had no knowledge of
the prohibited activity ifthe actions ofthewrongdoers The ARPA case begins with the determination by the
occurred while in the employ ofthat person or under land manager as to hew to proceed. The following
thatperson's supervision. Negligence, whichgivesrise procedure applies when the decision is to proceed
to civil liability, is: civilly and when forfeiture is a desired option. Also,
after the conclusion of a criminal matter where actual
The omission to do something which a reasonable monetary damages related to the disturbance of the
man, guided by those ordinary considerations sitewerenotsoughtornegotiatedinaplea agreement,
which ordinarily regulate human affairs, would do, orwhereforfeiturewas notpursued, the landmanager
or the doing ofsomething which a reasonable and may proceed with the following civil process.
prudent man would not do.
Report to the Land Manager
Inadvertence, carelessness, thoughtlessness, and inat- The agency law enforcement personnel, or investiga-
tention are all negligence. Where there is a duty to act tive personnel in the case of the Corps of Engineers,
ora contractual obligation to take action, the failureto will compile the ARPA case report. It will contain the
act is negligence. Thereforea personmaybe negligent information necessary to determine whether evidence
due to an action orfailure to act. Negligence mayexist exists for each ofthe issues ofproofdiscussed above.
even where there is no ill will or no desire that injury The reportalsowill contain a sitedamageanalysis and
occur. the basis for archeological interest that places the site
within the protection of ARPA. Photographs, maps,
Civil penalties also may be assessed for any violation returns on search warrants, and descriptions ofseized
of a permit. Intent is not an issue, and the alleged property will be included when they apply.
violation may be technical or inadvertent. In the case
of technical violations of a permit, agencies must The use of legal support for the agencies varies. In
proceed cautiously in seeking sanctions. During the most instances the land manager will decide how to
passage of ARPA, Congress expressed concern that proceed based on the report. In the Forest Service,
penalties notbe used to harass citizens in their normal policynowrequires that the report be submittedtothe
use of public land. Office ofGeneralCounselwhen civilaction iscontem-
platedsothatanattorneymayadvisethelandmanager
at each stage of the proceedings. The law does not
require, and civil actions are not dependent upon, time to find the allegedviolators and to tie them to the
representation of the agency by counsel (see ALJ scene. After four years an action may be prohibited.
hearing below). The 45 day period within which the alleged violator
must respond does not begin until the receipt of the
Notice ofthe Violation notice letter which contains the assessed penalty
Service: A civil action begins with the Notice ofViola- amount. Therefore the suspected violator may be
tcioornporwahtiicohn iisssesrevrevdedthoonugheaachstaatlulteogreydagveinotlawtohr.o Ais nroetsipfoienddowfotuhledasnsoetrtbeedgviinoluanttiioln,rebcuetipttheofobtlhiegasteiconontdo
listed with the Secretary ofState. Personal service may notice letter with a specific penalty.
be by a process server although the regulations allow
Respondent's Options
service by registered mail, return receipt requested.
All actions that followwill be predicated on the ability Once the suspect, who is termed the respondent in a
ofthe land managerto prove thatactual service onthe civil action, receives the notice one offour courses of
suspected violator has occurred. action mustbetakenwithin45 days. Thefirstandmost
desirable option for both sides is the scheduling of a
Contents: The notice will be in letter form, signed by meeting with the land manager to informally discuss
the land manager designee (Appendix A). It will the asserted violation and the amount of damages.
containashortstatementofthefacts thatindicatewhat Such an informal discussion complies with the Presi-
occurred, where, and how the alleged violator was dential "CivilJustice Reform" order issued in October
involved. This brief statement is not a recitation of 1991. The intent of the Executive Order is that no
everything in the report. The notice letterwill indicate formal litigation commence without an attempt to
whether the asserted violation occurred without a informally resolve the matter.
permit or outside the scope of a contract or employ-
ment agreement. The notice normally will state the The respondent may bypass the land managerbyfiling
amount ofthe proposed penalty, although the regula- with the land manager a Petition forRelief. This will
tions allowthe notice to besentwith anindication that place the matter before an ALJ to hear and decide. If
the actual amount is to be ascertained and will follow the respondent accepts the damage amount and re-
in a separate notice.45 Since the notice is not complete sponsibilityforthedamages, thelandmanagermaybe
without a specific penaltyamount stated, two separate paid in full or the respondent may notify the land
letters may impact on the ability of the land manager manager in writing that the amount is acceptable.
to show proper service. There will be instances, how- This acceptanceofthe civil penaltybythe respondent,
ever, when prompt noticewill preventfurtherdamage inwriting, relieves the land manager ofany obligation
even though the site damage analysis is not complete. tosendasecondletterasaformalnoticeofassessment.
Ifthe respondent later reneges on the payment ofthe
The notice must advise the violator of the options (1) penalty, thelandmanagermayobtainacourtjudgment
todiscussthe matterinformallywiththelandmanager, and proceed to collect on the judgment (see judgment
(2) to file a Petition for Relief which will trigger the below). The respondent may take no action and await
administrative lawprocess, or(3)totake noactionand the notice of the final assessment from the land
receive a notice offinal assessment. The notice will manager.52
advise the alleged violator of the option to remit
payment which will close all further proceedings. Informal Meeting
Finally, the notice must advise the alleged violator of Whena requestismadeforan informal meetingwithin
their right to seek judicial review of all administrative the 45 day period, the land manager is obligated to
determinations.
comply. This discussion may be attended by the
respondentwithorwithoutcounsel. Thelandmanager
Timing:The Notice ofAssessmentshould be served in may have present any personnel deemed necessary,
a reasonable time after the incident is investigated. which may include the investigator and the archeolo-
While there are no specified time limits, general prin- gist. Whether counsel is present for the government
ciples of timeliness do apply. If the matter languishes will depend upon the policy of each agency." The
until the evidence ofthe violation becomes obscured,
Office of Hearings and Appeals prefers the use of
it may be no longer appropriate to pursue the action. counsel at all times, since this furthers orderliness and
It is reasonable for several months to elapse while due process.
investigative work is beingcompleted, and it may take
Duringthe informaldiscussion therespondent maytry Assessment ofa Penalty
to impress the land manager that there is no responsi- The land manager will issue a written Notice of
bility or that the damages are too high. Ifa negotiated Assessmentwhich is tobeservedontherespondent(s)
compromiseis reached, itshould beputinwritingand in the same manner as the Notice ofViolation (Appen-
signed by both the land manager and the respondent. dix C). The assessment will be sent after the 45 day
This agreement will become the amount indicated in period has lapsed or at the conclusion ofany informal
the noticeofassessment. Ifnocompromiseis reached, meetings and the receipt ofa timelyPetition for Relief.
the land manager still will prepare a Notice ofAssess-
ment. Determination ofthe PenaltyAmount: If the alleged
violator does not respond, the assessment may repeat
If the land manager determines that no violation has most of the initial Notice of Violation. If a hearing or
occurred or that the respondent is not the responsible meeting has taken place, the Notice of Assessment
party, a written notice of that fact will be sent to the must discuss the information presented at the hearing
respondent indicating that no penalty shall be as- or meeting orfurnished in the petition forrelief. The
sessed. The land manager may determine that addi- penalty shall be assessed in accordance with the law
tional information is necessary, which will continue and regulations discussed above. Nonetheless, the
theinvestigation. When the additional information is land manager may assess an amount that is less than
received the land manager will then issue the Notice the maximum calculations for reasons enumerated in
of Assessment. The regulations do not contemplate a the regulations. The assessment may be reduced if:
secondinformalmeetingafterfurtherinvestigation,but
there is nothing in the regulations to preclude such 1. the respondent agrees to return archeological
action. If at the initial informal meeting the land resources taken from public orIndian lands, which
manager determines that further investigation is war- agreement may extend beyond the items originally
ranted and if this further investigation reveals a good noticed;
deal of new information that impacts the original
Notice of Violation, the land manager could serve a 2. the person agrees to assist in preservation,
second or amended Notice of Violation, and the protection, andstudyofarcheological resourceson
public and Indian lands;
process would begin anew.
3- the person will give information to assist in the
Petition for Reliefand Formal Hearing detection, prevention, or prosecution ofothervio-
lations ofARPA;
The uniform regulations to ARPA provide for the
respondent to request a formal hearing with the land 4. first time offenders show a demonstrated hard-
manager. The Petition for Relief is a letter, which ship and inability to pay;
responds specifically to the Notice of Violation (Ap- 5. there is no willful commission of the violation;
pendix B). This petition must be in writing and must 6. the proposed penalty is excessive;
be signed by the individual respondent or an author-
ized officer ofa corporate respondent. It must be filed 7. the proposed penalty is unfair.
with the land manager no later than 45 days from
receiptofthenoticeofviolation. Althoughthe uniform Content of the Notice ofAssessment: The Notice of
regulations do not resolve the possible problem ofthe Assessmentwill contain the facts and conclusions that
running ofthe 45 days while informal negotiations are resulted in the determination that a violation occurred
pending, itwould seem reasonable that the 45 days to and that the respondent committed the violation. It
file a petition for relief be extended in writing when willindicatethebasisfortheassessment, includingthesite
the respondent has requested and scheduled an infor- damageamount(doubledafterthefirstoffense), lessany
mal meetingwithin the45 dayperiod. The petition for amounts due to mitigation for any reasons stated. The
relief must indicate specifically the factual or legal assessment shall advise the respondent of the right to
reasons for any relief requested by the respondent. an administrative hearing and provide the addresses
This documentgives the land manageranotheroppor- of the appropriate administrative forum and the office
tunity to consider all issues before the determination of counsel for the agency. The notice shall state that
ofanassessment.Thefilingofa petition forreliefdoes the decision of the ALJ may be appealed administra-
not entitle the respondent to a hearing with the land tively, and thereafter, judicial review of the final ad-
manager. ministrative decision may be sought in the appropriate
62
UnitedStates DistrictCourt. Finally, the noticeshould
advise the person that failure to request a hearing, in or certified mail, return receipt requested. Forest Serv-
writing within 45 days, will result in a waiver of the ice matters will be handled by its Office of General
right to a hearing. Counsel, and TVA matters will be handled by its
General Counsel. The respondent must serve notice
Administrative Hearings to the office listed in the Notice ofAssessment.
RequestforaHearing: Within 45 days ofthe receipt of
the Notice ofAssessment the respondent must request Once a specific ALJ is assigned to the case, all com-
munications are sent directly to that judge. Copies of
areqhueearsitnmgusortbtheeinriwgrhittiisngdaenedmeadcctoompbeanwiaeidvebdy.acTohpey all d^oc7u0ments sent to theALJ must be sent to the other
party.
ofthe Notice ofAssessment. The regulations do not
indicate specifically that a Petition for Relief be in-
RepresentationbyConnselandAppearanceataHeating:
cluded with the request, but it would be appropriate Each Department's policy states when counsel will
for the respondent to indicate the specific aspects of
the assessment with which exception is taken. The appear on its behalf at ALJ hearings. Currently the
request may be delivered in person or sent by regis- tOhffeiTceVsAofprGeefneerrtaolbCeouinnsveollvfeodritnheARFoPrAesctivSilerpvrioceceaendd-
tered or certified mail, return receipt requested. It is
important for the respondent to show proof that a ings at each stage of the process. This is strongly
recommended by the ALJs. The Department of the
hearing request was timely. The regulations allow the
Interior Supplemental Regulations provide that the
person to deliver the request personally and thus save
the cost ofa process server. The addresses fordelivery departmental counsel designated by the Solicitor offi-
cially will enter the case once an assignment is made
of the notice are given in the Notice ofAssessment.
to a specific ALJ for hearing. Thus the land manager
Administrative LawJudges: The ALJs function within will receive the request for hearing from the respon-
dent and the notice of the ALJ assignment and then
andare partoftheExecutiveBranch. They are notpart
forwardtheentirecasefiletotheappropriateSolicitor's
ofthe Federal courtsystem. Noteveryagencyemploys
ALJs, and until recentlyacivilARPAcasemaynothave or General Counsel's office. Thereafter the attorney
been an option. By Memorandum of Agreement the assignedthematterwillberesponsiblefordetermining
Forest Service and the Tennessee Valley Authority that all documents have been filed with the ALJ. The
rules for the ALJ hearings do not require that either
(TVA)haveremovedthis impediment. Thefollowing
party be represented by an attorney. The Interior
description will track the process before the Hearings
Supplemental Regulations allow for the appearance at
Division, Office ofHearings andAppeals, Department
a hearing of the party in person, by a representative,
ofthe Interior.
orbycounsel. " Ifthe respondent fails to appearatthe
ALJ Process: The Department of the Interior ARPA hearing and there is no good cause for the absence,
the ALJ then will make a decision without a hearing
Supplemental Regulationsspecifythedocuments tobe
based on the documents provided.
mailed to the Hearings Division, Office of Hearings
and Appeals, Department ofthe Interior, 4015 Wilson
Conduct ofa Hearing: The rules for a hearing before
Boulevard, Arlington, Virginia 22203-1954, with the
anALJaremorerelaxedandabbreviatedthantherules
requestforahearing. Therequestmust be in writingand
of procedure in a Federal district court. Testimony
dated. It must include a copy of both the Notice of underoathwill beheardbytheALJ fromthewitnesses
Assessment and the Notice of Violation. Further, "the
for each side. Each side will have an opportunity to
request shall state the relief sought, the basis for question each witness. A transcript of the proceeding
challenging the facts used as the basis for chargingthe
will be made. Exhibits such as maps, titles to vehicles,
violation and fixing the assessment. ..." Therefore,
and archeological materials may be submitted to the
the request establishes the issues for the hearing. In
addition the respondent may indicate preferences as ALJ. The ALJ will consider the evidence and the briefs
filed and render a decision. There is no jury. The
to the place and date for the hearing.
decision will be in writing and will specify findings of
Atoctohpeyloegfalallcoduoncsuemlenftorstsheentatgoentchye AthLaJtmiunsittiabteedstehnet ifsacbtasaendd.cTohneclAuLsiJoinssnooftllaiwmituepdotnowthhiecdhettehremidneactiisoinosn
madebythelandmanagerintheNoticeofAssessment.
procedure. For example, if the agency is within the Based on the evidence produced at the hearing, the
Department ofthe Interior, the Solicitor ofthe Depart-
ALJ may increase or decrease the assessment.
ment must receive a copy personally or by registered
.
Final OrderandAdministrativeAppeal: The decision 4. 45 days after the appeals board issues a decision
of the ALJ becomes final 30 calendar days after the anda final assessmentandthe respondentdoes not
written ruling is sent to the parties, unless in the case appeal to a Federal district court or
;
ofDepartment ofthe Interiorland managers eitherthe 5- theFederaldistrictcourtissuesanorderaffirming
respondent or the land manager files a Notice of the final administrative decision.
Appealwithin30days. A"NoticeofAppeal" isabrief
statement of intent to appeal, and it is mailed to the
Director, Office ofHearings and Appeals, U.S. Depart- If at any point the respondent does not pursue the
mentoftheInterior,4015WilsonBoulevard,Arlington, available process, the penalty is deemed to be ac-
Virginia 22203-1954. Copies must be mailed to the cepted, and payment becomes due. Given the usual
other party and to the judge who rendered the deci- time delays, a respondent may postpone payment for
sion. The Notice ofAppeal must have attached to itan a period of time. Although the civil process does not
affidavit that the copieswere sent. AnAd Hoc Board provide an instant remedy and fast payment, it is still
of Appeals will be appointed by the Director, Office less cumbersome than obtaining financial redress
of Hearings and Appeals, pursuant to 43 CFR Parts through the criminal process. During this time if it
4.1(b)(4)and4.700, todecidetheappeal.Theappellate appears that the respondent may be dissipating assets
review is not a repeat of the first hearing. The appeal or frustrating the possibility of collecting on a judg-
panel will consider the matter on the record compiled ment, steps may be taken by the appropriate office of
by the ALJ and supplemented by briefs in support of the U.S. Attorney who will handle collection. Under
the appeal and oral argument ifnecessary. The appeal normal circumstances the agency will refer the matter
panel will issue a written decision, which constitutes to the U.S. Attorney for collection when the penalty is
the final administrative determination of the matter.80 not paid. In some cases, such as the TVA, agency
It may be subject to judicial review in the appropriate counsel will pursue collection.
Federal district court. Ifthe administrative order is not
appealed it will be final and collectable. A final penalty becomes a judgment, which is a
court-ordered demand for payment of a set amount.
Theadministrative appeal panelwilldetermineifthere Thejudgmentwillaccrueinterestatthehighestlegalrate.
are facts to support the ALJ's decision, if all of the Toobtainpaymentonthejudgmentfromarespondent
procedural aspects ofthe processwere in compliance, who does notvoluntarily pay requires a second tierof
and if the ALJ's decision complies with the law. A legal actions. The office ofeachU.S. Attorneycontains
Federal district court judge presented with a Petition a collection division to pursue payment of judgments
for Review of the administrative appeal panel will owed to agencies of the Federal Government. The
consider only the specific issues designated by the collection attorney will file a copy of the judgment in
party who pursues the appeal. This judge will not the district in which the respondent lives, transacts
substitute a new opinion for one supported by evi- business, or can be found and served. Liens may be
dence. The predominant issue on appeal may be a placed on properties owned by the respondent, and
claim by the respondent that he or she was not any income maybe garnished. Ifthere is no collection
properly served or was denied due process. attorney available, civil collection actions may be
initiated directly. Some ofthe costs ofcollectionwill
Payment ofthe Penalty be added to the amountowed bythe respondent.89 In
a collection action the debtor may not attack the
Payment of an assessment is due: amount of the judgment, the basis for the judgment,
the calculation ofthe penalty, or ask that the judge go
1 when the respondent receives a Notice ofViola- behind the judgment to examine the reasons for the
tion a81nd opts to pay in full without further discus- judgment. If, however, the judgment is defective due
sion; to a procedural omission, the judgment may not be
2. 45 days from the receipt ofthe Notice ofAssess- enforced.
ment from the land manager and the respondent
does not request a hearing; Penalties collected from incidents occurring on Indian
3. 30 days after the decision of the ALJ and the lands are paid to the appropriate tribal entity. All other
respondent does not file a Notice of Appeal with funds collected above the costs of collection are paid
the Office of Hearings and Appeals; totheagency bringingtheaction. Howthesefundsare
allocated within the agency is a matter of internal
agency policy.
Forfeiture ofVehicles and Tools Civil actions will not replace all criminal prosecutions
ItemsSubjecttoForfeiture:Materialsexcavatedortaken for ARPA violations that have become commonplace
from Indian and Federal lands will be seized, as they nationwide. Similarly, citations issued under the vari-
are the property of the Indian or Federal land- ous agency CFRs still will be appropriate. However,
owner. The person from whom the materials are where financial recoupment ofdamages is the desired
seized may be given a receipt for these items as a result, the civil process is waiting to be used.
matter ofrecord keeping. Property, includingvehicles
and tools, that belongs to the alleged violator and is This brief is intended to assist in the use of the civil
used in the commission of the asserted violation is law. To keep updated on civil ARPA matters, copies
subject to forfeiture. These items may be seized and of decisions in civil penalty proceedings may be
held at the time of the asserted violation. They are to obtained by a written request to the Director, Office
bereleasedeithertotheownerortotheseizingagency of Hearings and Appeals, U.S. Department of the
depending on the outcome of the forfeiture action. Interior, 4015 Wilson Boulevard, Arlington, Virginia
22303-1954. There may be a fee for this service.
Eachagencyand the landmanagerdeterminewhether
to pursue forfeiture. Even though forfeiture may be a
legal option, the condition of the item or the lien on
the item may make forfeiture undesirable. Forfeiture
maybenegotiatedbythelandmanagerinthe informal
meeting or hearing process.
ForfeitureProcedure: Items may be forfeited civilly by
inclusion in the Notice of Violation as part of the
demand or as an action against the item itself.92 Ifthe
Notice of Violation served on a respondent contains
the appropriate language, the forfeiture becomes an
integral part of the civil penalty process (Appendices
A & C). Ifat any time the forfeiture is not appealed or
preserved in the civil process outlined above, the item
becomesthepropertyoftheagencyortheIndiantribal
entityiftheviolationoccurredonIndian lands. Ifthe
items to be forfeited are not associated with a person,
the government may file an in rem judicial action,
whichisanactionagainstthething. Noticeispublished
in a newspaper that the described items are subject to
forfeiture, and any interested persons must come forth
orlosetheirabilitytoclaimtheitems.The inremaction
is filed in the Federal district court where the items
were found. The determination by the court that the
items were used in an ARPA violation is sufficient to
award the property to the government or tribal entity.
Ifsomeoneappearstocontestforfeiture, theindividual
has the burden of proving lawful ownership, and
connection with or knowledge of the violation must
be dispelled. Even if the lawful owner had no actual
partintheARPAviolation, theitemstillwillbeforfeited
iftheownerkneworshouldhaveknownhowtheitem
was to be used.
Prognosis forUse
If there is a correlation to be drawn to the growth of
ARPA criminal actions, once the civil prosecution
process is known, its use could expand significantly.
10