# 

###### Published by the DOI Departmental Consulting Archeologist/NPS Archeology         Program, National Park Service, Washington, DC, February 2007.

## Foreword, by Francis P. McManamon, Chief Archeologist, NPS; Departmental       Consulting Archeologist, DOI

*This technical brief describes and explains the archeological resource       damage assessment process. The legal foundation for and the necessity of       archeological damage assessments is described, as are the procedures for       field damage assessment, value and cost determinations, and report preparation.       Archeologists, attorneys, and law enforcement specialists involved in investigations       of crimes against archeological resources must understand clearly the archeological       resource damage assessment process and how to carry it out correctly. The       credibility of these damage assessments directly affects the outcome of       legal cases and the criminal or civil penalties imposed.*

*In November 2002, a new sentencing guideline issued by the United States       Sentencing Commission became effective. This document, entitled, "Cultural       Heritage Guideline," provided the federal judicial system with consistent,       rational procedures for developing potential sentences for those convicted       of crimes involving cultural heritage resources, including various kinds       of archeological resources. Prohibited activities include, among other things,       damage to or destruction of archeological resources, unauthorized removal       of artifacts, features, or other components from protected sites, theft,       and illegal trafficking.*

*The cultural heritage guidelines make use of the concepts of "archeological       value," "commercial value," and "the cost of restoration and repair." All       of these terms, as they are used in a formal legal context, are defined       either in the Archaeological Resource Protection Act (ARPA), the federal       law that most directly protects archeological resources, or the regulations       that implement this law. Since ARPA, which became law in 1979, has been       enforced, the ways in which these concepts and terms have been used has       developed through their application in individual cases. After 25 years       of practical use of these concepts, the synthesis of what had been learned       through individual cases into a set of standards was warranted. Such general       standards would be of use to archeologists, attorneys, and law enforcement       personnel in federal agencies assigned to ensure effective prosecution of       archeological resource looters, traffickers, and vandals.*

*In addition, the development and publication of the new sentencing guideline       emphasized the need for standards because use of the guideline by judges       throughout the federal judicial system meant that more judges, including       those who might have had little or no familiarity with archeology or archeological       resources, would be using these specialized concepts. Professional standards       describing how archeological value calculations should be developed would       serve two purposes. First, they would provide justification for a consistent       set of procedures and guidelines for professional archeologists who conduct       archeological damage assessments and calculate archeological value for specific       legal cases. Secondly, the standards would provide an objective basis for       judgment of the legitimacy of the damage assessments used in prosecutions       of those accused of crimes against archeological resources. Judges would       determine whether the standards had been followed when they evaluated the       procedures used to reach archeological value amounts provided by the prosecution       in specific cases.*

*The Society for American Archaeology (SAA), an organization dedicated       to the research, interpretation, and protection of the archaeological heritage       of the Americas, with the support of the National Park Service, assembled       a group of public and private sector and academic archeologists, government       attorneys, and law enforcement experts to develop these needed standards.       The group met in a workshop in March 2003. They drafted the standards at       the the workshop and refined the drafts during the following months. In       November 2003, the Board of Directors of the SAA reviewed and approved as       official, "Professional Standards for the Determination of Archaeological       Value." This technical brief is designed to provide additional guidance       for the use of the standards, drawing on decades of experience in archeological       resource protection.*

## Introduction

The criminal and civil penalty sections of the Archaeological Resources       Protection Act (16 USC 470aa-mm; ARPA) require the assessment of damage       to archeological resources that are harmed by unauthorized acts. Archeological       resource damage assessment uses the methods of archeology to provide the       information necessary to prove that the archeological elements of a criminal       or civil violation of ARPA are met according to the requirements of the       law and the judicial system (see Figure 1). The assessment of damages to       archeological resources in archeological violation cases cannot be carried       out without reference to these legal requirements. In other words, archeological       resource damage assessments require both archeological expertise and adherence       to legal requirements.

Figure 1: This diagram represents the relationship of Archeological Resource         Damage Assessment to Archeology and to the Law and Judicial System. (Figure         developed by Assistant United States Attorney Wayne Dance, Department         of Justice, District of Utah. Used by permission.)

The purpose of this technical brief is to describe and explain the archeological       resource damage assessment process. The legal basis of archeological resource       damage assessment is presented by identifying the elements that must be       proven for the prosecution of either a criminal or civil violation of ARPA.       The Act's definition of an “archeological resource” also is       discussed because it is a critical component of the elements of a violation       and is a central issue in damage assessment. The remainder of the technical       brief describes and explains the three components of archeological resource       damage assessment: (1) field damage assessment; (2) value and cost determinations;       and (3) archeological resource damage assessment report preparation. Procedures       are recommended for accomplishing each of these damage assessment components.

## Archeological Elements of an ARPA Criminal Violation

Black's Law Dictionary (2005:559) defines “elements of crime”       as, “The constituent parts of a crime � that the prosecution must       prove to sustain a conviction”. The archeological elements of an ARPA       criminal violation come directly from the statute:
      - 16 U. S. C. § 470ee. Prohibited acts and criminal penalties
      - (a) Unauthorized excavation, removal, damage, alteration, or defacement         of archaeological resources          No person may excavate, remove, damage, or otherwise alter or deface,           or attempt to excavate, remove, damage, or otherwise alter or deface           any archaeological resource located on public lands or Indian lands           unless such activity is pursuant to a permit issued under section 470cc           of this title, a permit referred to in section 470cc(h)(2) of this title,           or the exemption contained in section 470cc(g)(1) of this title. 
      - (b) Trafficking in archaeological resources the excavation or removal         of which was wrongful under Federal law          No person may sell, purchase, exchange, transport, receive, or offer           to sell, purchase, or exchange any archaeological resource if such resource           was excavated or removed from public lands or Indian lands in violation           of—          - (1) the prohibition contained in subsection (a) of this section,             or
        - (2) any provision, rule, regulation, ordinance, or permit in effect             under any other provision of Federal law. 
      - (c) Trafficking in interstate or foreign commerce in archaeological         resources the excavation, removal, sale, purchase, exchange, transportation         or receipt of which was wrongful under State or local law          No person may sell, purchase, exchange, transport, receive, or offer           to sell, purchase, or exchange, in interstate or foreign commerce, any           archaeological resource excavated, removed, sold, purchased, exchanged,           transported, or received in violation of any provision, rule, regulation,           ordinance, or permit in effect under State or local law. 
      - (d) Penalties   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. In the case of a second or subsequent such violation upon conviction           such person shall be fined not more than $100,000, or imprisoned not           more than five years, or both. 

Readers should note that the maximum fines for Class A misdemeanor and       felony violations of federal law by individuals were increased to $100,000       and $250,000 respectively by the Criminal Fines Improvement Act of 1987       (see 18 USC § 3571(b)); maximum fines for Class A misdemeanor and felony       violations by organizations are $200,000 and $500,000 respectively. As a       result, these are now the maximum fines for Class A misdemeanor and felony       violations of ARPA, even though the original and lower ARPA fine amounts       are shown in § 470ee(d).

Thus, the six elements that must be proven for a felony violation of §       470ee(a), as supplemented by § 470ee(d), are:
      - Element 1. The violation affected an archeological resource as defined         in ARPA.
      - Element 2. The violation occurred on public (federal) or Indian lands.
      - Element 3. The violation involved one or more of ARPA's prohibited acts.
      - Element 4. The prohibited act occurred without an ARPA permit for archeological         investigation.
      - Element 5. The violator acted knowingly (i.e. with criminal intent).
      - Element 6. For a felony offense only, the sum of archeological value         and cost of restoration and repair, or the sum of commercial value and         cost of restoration and repair, exceeds $500.00. If this element is not         charged, or is charged but not proven, the ARPA violation is a Class A         misdemeanor.

The subsections of § 470ee prohibiting the unlawful trafficking of       archeological resources, § 470ee(b) and § 470ee(c), have distinct       elements that must be proven. These elements are not dealt with here because       they do not affect the damage assessment process.

Elements 1, 3, and 6, are archeological elements that require archeological       information, either in whole or in part, to prove each of them. Exclusively       archeological information is necessary for the proof of Element 1. Element       3 requires both investigative information on how the violation occurred       and archeological information on the nature of the archeological resource       damage involved in the prohibited act or acts. Element 6 requires archeological       information for the archeological value and cost of restoration and repair       determination and both archeological and appraisal information for the commercial       value determination. Elements 2, 4 and 5 can be proven without archeological       information.

## Archeological Elements of an ARPA Civil Violation

ARPA civil violations are subject to the assessment of an ARPA civil penalty.       ARPA civil violations also have elements that must be proven. The archeological       elements of an ARPA civil violation again come directly from the statute:
      - 16 U. S. C. § 470ff. Civil penalties
      - (a) Assessment by Federal land Manager
      (1) Any person who violates any prohibition contained in an applicable           regulation or permit issued under this chapter may be assessed a civil           penalty by the Federal land manager concerned. No penalty may be assessed           under this subsection unless such person is given notice and opportunity           for a hearing with respect to such violation. Each violation shall be           a separate offense. Any such civil penalty may be remitted or mitigated           by the Federal land manager concerned.
(2) The amount of such penalty shall be determined under regulations           promulgated pursuant to this chapter, taking into account, in addition           to other factors—
- (A) the archaeological or commercial value of the archaeological             resource involved, and
- (B) the cost of restoration and repair of the resource and the archeological             site involved.

Substantial portions of the text of the prohibited acts and criminal penalties       section of the ARPA statute (see above) are restated in the ARPA Uniform       Regulations, Section __.4(a)-(c) so that a civil penalty may be assessed       for a violation of this section of the statute and its reference to “any       prohibition contained in an applicable regulation.”
      - Thus, the elements that must be proven for a civil violation of � 470ff(a)         are:
      - Element 1. The violation affected an archaeological resource as defined         in ARPA.
      - Element 2. The violation occurred on public (federal) or Indian lands.
      - Element 3. The violation involved one or more of ARPA's prohibited acts.
      - Element 4. The prohibited act occurred without an ARPA permit for archeological         investigation.

Once the civil violation is proven, the violator is subject to the assessment       of an ARPA civil penalty, the maximum amount of which will be the sum of       archeological value and the cost of restoration and repair, or the sum of       commercial value and the cost of restoration and repair.

The elements that must be proven for the assessment of a civil penalty       under § 470ff are the same as for a criminal violation of § 470ee,       with the exception of element 5 (criminal intent) and element 6 which is       only relevant to criminal proceedings. As in the case of the criminal violation       elements, elements 1 (archeological resource), 3 (prohibited acts), as well       as the value and cost determinations, are archeological elements that require       archeological information to prove each of them.

Readers should note that the text of the ARPA Uniform Regulations is, as       their title implies, uniform. Due to the organization of the Code of Federal       Regulations (CFR), the ARPA uniform regulations appear in four different       locations within the CFR. The text of the ARPA regulations is identical,       but the numbering is different depending on the department or agency that       the regulations cover. Specifically, for the Department of the Interior       the numbering is 43 CFR Part 7, for the Department of Agriculture it is       36 CFR Part 296, for the Department of Defense it is 32 CFR Part 229, and       for the Tennessee Valley Authority it is 18 CFR Part 1312. For example,       Section __.4(a)-(c) of the regulations would be found at 43 CFR Part 7.4(a)-(c)       for Department of the Interior agencies, such as the National Park Service       and the Bureau of Land Management, and at 36 CFR Part 296.4(a)-(c) for Department       of Agriculture agencies, such as the Forest Service. References to sections       of the ARPA Uniform Regulations in this Technical Brief use a department-neutral       format (e.g. “Section __.4(a)-(c)”).)

## Archeological Resources Protected by ARPA

ARPA's definition of an “archaeological resource” is:
      - 16 U. S. C.§ 470bb. Definitions
      - (1) The term archaeological resource means any material remains of past         human life or activities which are of archaeological interest � at least         100 years of age.

The terms “material remains” and “archaeological interest”       are defined in the ARPA uniform regulations:
      - “Material remains” means physical evidence of human habitation,         occupation use, or activity, including the site location or context in         which such evidence is found ( Section __.3(a)(2)).
      - “Of archaeological interest” means capable of providing         scientific or humanistic understandings of past human behavior, cultural         adaptation, and related topics through the application of scientific or         scholarly techniques such as controlled observation, contextual measurement,         controlled collection, analysis, interpretation and explanation (Section         __.3(a)(1)).

The ARPA uniform regulations also includes a list of examples of “classes       of material remains” considered to be archeological resources (Section       __.3(a)(3)(i-x); see Appendix A).

## Field Damage Assessment

Field damage assessment is carried out to obtain information about damage       to an archeological resource or resources involved in a potential violation       of ARPA or other applicable statutes. The assessment is conducted at the       location of this damage and is part of the overall investigation at the       scene of the violation. Typically, the damage location is an archeological       site, but violations may occur that do not involve sites, such as theft       of isolated artifacts or theft from curation facilities or museums. The       resulting information about the damage will be used in both the value and       cost determinations and in the archeological resource damage assessment       report that will be developed as part of case preparation. Four operations       must be completed in carrying out field damage assessment. The procedures             use basic archeological data collection methods.
      - Identification of the archeological resource damage locations:                  - Identify all damage locations.
        - Attempt to distinguish new damage locations from old damage locations,             if the latter are present. 
      - Identification of the archeological resources damaged and the damage         to them:                  - Identify the archeological resources protected by ARPA or other             statutes at the damage locations (refer to the ARPA definition of             an archeological resource [see above] and the ARPA uniform regulations             examples of the “classes of material remains” considered             to be archeological resources [see  Appendix A ]).
        - Identify the damage to these resources in terms of the acts prohibited             by ARPA (see above). 
      - Measurement of the amount of archeological resource damage:                  - Make accurate tape measurements of the amount of damage, unless             other, more sophisticated quantification methods are available (see             3b.). To meet forensic standards of documentation, make as complete             a series of measurements as possible given the time available. Either             metric or English standard measurements (e.g. inches, feet, yards)             may be used, but metric measurements of damage must be converted to             standard measurements in the damage assessment report. Note that if             the damage has extended below the surface of a site, depth measurements             are important. Sufficient measurements should be made to calculate             the volume of damage. 
        - Use other more sophisticated methods to quantify the amount of damage,             such as total station or 3D laser scanning. More detailed measures             such as these may be employed to complete an assessment, following             the initial use of tape measurements. 
      - Documentation of findings:                  - Take accurate and complete notes on all aspects of the field damage             assessment process.
        - Photograph the damage locations, the archeological resources damaged             and the damage to them.
        - Map the damage locations.
        - Documentation should be as detailed and objective as possible. 

## Value and Cost Determination

ARPA identifies three monetary determinations as the measures of the severity       of harm to the archeological resource(s) involved in either a criminal violation       or a civil violation of the statute. These monetary determinations are:
      - Commercial Value
      - Archeological Value
      - Cost of Restoration and Repair

As is indicated by the definitions of these terms in the ARPA uniform regulations       (see below), all archeological violation cases that involve damage to *in       situ* archeological resources require both archeological value and cost       of restoration and repair determinations.

Archeological violation cases may or may not involve a commercial value       determination. Commercial value derives from collector interest in archeological       resources. Archeological resources that have collector interest will have       a fair market value, while those that are not of interest to collectors       will not have a market value. A commercial value determination is not necessary       when the archeological resources involved in a violation are not of collector       interest and do not have a fair market value. When there is collector interest       in the resources and a resulting fair market value, then a commercial value       determination is required. (Note that market value does not necessarily       mean the exchange of cash, but can also include the exchange of goods, i.e.,       barter. For example, artifacts may be traded for drugs or other artifacts       as well as for money.)

The tables referred to in the following sub-sections on “Commercial       Value,” “Archeological Value” and “Cost of Restoration       and Repair” and the “Archeological Resource Damage Assessment       Report Preparation” section may be developed at any point in the process       of making the value and cost determinations and preparing the resource damage       assessment report. Typically, they are prepared as a component of the determinations       and prior to writing the report text, but this is not required.

Readers should note that there are some basic and highly important concerns       in the ARPA value and cost determination process. First, speculation is       not permissible. Second, and following from the first point, values or costs       included must be fully justifiable in terms of being either incurred or       projected on an actual and reasonable basis. Third, values or costs for       the same operation must not be included twice or "double counted" in the       value and cost determinations. When operations appearing to be the same       or similar are included in different aspects of a value and cost determination,       their differing purposes must be fully explained. Examples of issues related       to these concerns will be provided in the discussion of commercial value,       archeological value and cost of restoration and repair. 

## Commercial Value

“Commercial Value” is defined in Section __.14 of the ARPA       uniform regulations:
> Commercial value. For the purposes of this part, the commercial       value of any archaeological resource involved in a violation of the prohibitions       in § __.4 of this part or conditions of a permit issued pursuant to       this part shall be its fair market value. Where the violation has resulted       in damage to the archaeological resource, the fair market value should be       determined using the condition of the archaeological resource prior to the       violation, to the extent that its prior condition can be ascertained (Section       __.14(b)).

Black's Law Dictionary (2005:12944) defines “fair market value”       as, “The price that a seller is willing to accept and a buyer is willing       to pay on the open market �”. Note that the definition requires the       commercial value of damaged archeological resources to be determined only       in this damaged condition unless it can be show that the damage was caused       by the violation.

### Procedures for Determination of Commercial Value.

The following procedures can be used to determine commercial value. These       procedures should be carried out by an expert on the fair market value of       the archeological resources involved in the violation. In most cases, the       archeological resources of commercial value will be artifacts such as modified       stone, ceramic, wood, glass, or metal, but they also may be archeological       features or components of archeological features that have been removed,       such as rock art panels or rock art boulders. Intact artifacts such as whole       pots and unbroken bottles definitely have commercial value, but, in today's       marketplace, even items such as pottery sherds, broken points, and lithic       flakes can have commercial value. Typically, an archeologist will be identified       who has or will develop this expertise, but a commercial insurance or estate       appraiser who has knowledge of archeological resource market values also       may be used. The determination should be based on the most current fair       market values of the archeological resources for the time period when the       violation occurred.
      - Identify any archeological resources that are evidence in the case that         have interest to collectors of archeological resources and, therefore,         commercial value.
      - Determine (or have a commercial appraiser determine) the current fair         market value of these items from appropriate commercial value sources         (see below).
      - Develop a commercial value table or tables showing the fair market value         of each item and the total commercial value figure (see Figure 2 for an         example).

A commercial value determination should not include a value figure for       an archeological resource that is assumed to have been removed but was not       actually recovered. This would be speculative. Only archeological resources       that are evidence in the case and can be examined during any legal proceedings       should be considered in a commercial value determination.

**Figure 2:** Example of a Commercial Value Table (reproduced       from McAllister 1999:10-13; Note that “grades” applied to artifacts       are based on definitions in Robert M. Overstreet's *Overstreet Identification       and Price Guide to Indian Arrowheads.*)
| **Artifact Commercial           Values by Sequential Artifact Photo Numbers** |
|--------------------------------------------------------------------------------|
| **Photo Number**                                                               | **Point or Artifact Type** | **Grade** | **Commercial Value** |
| 01                                                                             | Pinto | 8 | $125 |
| 02                                                                             | Humboldt Base Notched | 8 | $150 |
| 03                                                                             | Pinto, Stemmed | 8 | $175 |
| 04                                                                             | Elko Base Notched | 9 | $150 |
| 05                                                                             | Drill | 4 | $15 |
| 06                                                                             | Rose Spring | 6 | $20 |
| 07                                                                             | Rose Spring | 7 | $25 |
| 08                                                                             | Pinto | 7 | $25 |
| 09                                                                             | Rose Spring | 7 | $25 |
| 10                                                                             | Elko | 7 | $25 |
| 11                                                                             | Desert Side Notched | 5 | $8 |
| 12                                                                             | Rose Spring | 7 | $45 |
| 13                                                                             | Rose Spring Side Notched | 7 | $45 |
| 14                                                                             | Rose Spring | 7 | $25 |
| 15                                                                             | Pinto | 7 | $30 |
| 16                                                                             | Desert Side Notched | 7 | $20 |
| 17                                                                             | Elko Base Notched | 7 | $35 |
| 18                                                                             | Desert Side Notched | 7 | $20 |
| 19                                                                             | Northern Side Notched | 6 | $65 |
| 20                                                                             | Elko Eared | 8 | $50 |
| �                                                                              |  |  |  |
| 199                                                                            | Un-typable Point | 1 | $0 |
| 200                                                                            | Side Notched | 2 | $5 |
| 205                                                                            | Side Notched | 2 | $5 |
| 209                                                                            | Side Notched | 2 | $3 |
| 215                                                                            | Side Notched | 3 | $7 |
| 221                                                                            | Elko Corner Notched | 2 | $5 |
| 228                                                                            | Side Notched | 2 | $5 |
| 229                                                                            | Side Notched | 3 | $8 |
| 234                                                                            | Scraper | 5 | $8 |
| 236                                                                            | Scraper | 5 | $8 |
| 247                                                                            | Side Notched | 2 | $5 |
| 248                                                                            | Elko Corner Notched | 3 | $8 |
| 250                                                                            | Elko Corner Notched | 2 | $5 |
| TOTAL COMMERCIAL VALUE                                                         |  | $4,636 |

***Commercial Value Sources.*** The following are examples       of commercial value sources:
      - artifact price guides
      - artifact collector publications
      - artifact shops and galleries
      - artifact shows and sales
      - gun or knife shows and sales where artifacts are sold
      - Internet artifact websites

Note that the Internet may or may not be useful in determining the commercial       value of archeological resources. Its usefulness depends upon how much information       is available on the market value of specific types of archeological resources.       Sometimes there is no information and, in other instances, there may be       too much information. Often, artifact price guides and artifact collector       publications are more useful sources of information on commercial value.

Technical Briefs|next

      -  Foreward 
      -  Introduction 
      -  ARPA Criminal Violation 
      -  ARPA Civil Violation 
      -  Protected Resources 
      -  Field Damage Assessment 
      -  Value & Cost Determination 
      -  Commercial Value 
      -  Archeological Value 
      -  Restoration and Repair Cost 
      -  Damage Assessment Report 
      -  Report Topics 
      -  Basic Stylistic Rules 
      -  Report Preparation 
      -  Summary & Conclusion 
      -  Appendix A: Protected resources 
      -  Appendix B: Professional Standards 
      -  References 
      -  Acknowledgements 
      - print         version  
      -  technical briefs index 

    -  DOI 
    -  History & Culture 
    -  Search 
    -  Contact 
    -  FOIA 
    -  Privacy 
    -  Disclaimer 
    -  USA.gov 

    - archeology       in the parks  
    - archeology       nationwide  
    - professional       tools  
    - for       the public  
    - kennewick       man
    - the       antiquities act
    - what's       new

    -  
    -  
    - technical assistance
    - databases
    - standards & guidelines
    - training & education
    - reports
    - publications

    -  
    -  
    -  
    - features
    - learn and participate
    - for teachers