UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-40748

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UNITED STATES OF AMERICA

Defendant-Appellee,

versus

BILLY RAY SHIVERS

Plaintiff-Appellant.

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Appeal from the United States District Court

for the Eastern District of Texas

_________________________________________________________________ September 13, 1996

Before KING, JONES, and DUHE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Billy Ray Shivers found buried treasure at the site of an

abandoned lumber mill company town. Unfortunately for Shivers, the

site is located in the Angelina National Forest, and the federal

government claimed ownership of and seized from Shivers some 50-70

metal tokens he uncovered with a metal detector. The district

court denied his Fed. Rule Crim. Proc. 41(e) motion seeking return

of the tokens, as it concluded Shivers did not own them pursuant to

either the Archeological Resources Protection Act (“ARPA”), 16

U.S.C. § 47 0ee, or the common law of finds. This court approves

the district court’s conclusion and therefore affirms.2 BACKGROUND

The tokens that Shi v ers excavated from the Aldridge

Lumber Company mill site were used by the saw mill as payment for

workers 50-100 years ago. The tokens and other items were seized

pursuan t to a search warrant from Shivers’s home when the

government came to believe he had obtained them in violation of

ARPA, which forbi ds the un-permitted excavation of archeological

resources from federal lands.

When the government chose not to pursue criminal charges

against Shivers, it eventually gave back the rest of the seized

property, but refused to return t he tokens to him. The district

court’s rebuff of Shivers’s Fed. R. Crim. Proc. 41(e) motion for

return of seized property gives rise to this appeal.

DISCUSSION

A. Standard of Review

As Shivers expressly concedes the factual findings of the

district court, this court reviews the district court’s conclusions

of law de novo. P alma v. Verex Assurance, Inc., 79 F.3d 1452, 1458

(5th Cir. 1996).

B. Ownership under the ARPA: 16 U.S.C. § 470kk

Shivers argues that the plain language of ARPA § 470kk

vests him with ownership of the Aldridge tokens because he is a

private collector of coins and other artifacts not defined by the

ARPA as archaeological resources.

ARPA was enacted by Congress to protect “archaeological

resources” found on public lands and to promote study and3

evaluation of these res ources. S ee 16 U.S.C. § 470aa(b). An

“archaeological resource” is statutorily defined as

any material remains of past human life or

activities which are of archeological

interest, as determined under uniform

reg ulations promulgated pursuant to this

chapter

. . . . No item shall be treated as an archaeological resource under regulations

under this par agraph u nless such item is at

least 100 years of age.

16 U.S.C. § 470bb(1) (emphasis added). “Archaeological resources”

so defined remain property of the United States if removed from

public lands. S ee 16 U.S.C. § 470cc(b)(3); 36 C.F.R. §

296.6(b)(5); H.R. Rep. No. 311, 96th Cong., 1st Session, 7 (1979).

Since the Aldridge tokens are between 50 and 100 years old,

however, they are not “archaeological resources” for pu rposes of

the ARPA.

Shivers’s principal argument rests on a facile premise:

because the tokens are not “archaeological resources,” § 470kk of

the ARPA conveys an ownership interest to him as a private

collector of coins. Section 470kk provides that

[n]othing in this chapter applies to, or requires a permit for, the collection for

private purposes of any rock, coin, bullet, or

mineral which is not an archaeological

resource, as determined under uniform

regulations promulgated under section 470bb(1)

of this title.

16 U.S.C. § 470kk(b). From this provision, Shivers infers that

private individuals are authorized by ARPA to re move coins less

than 100 years old from public land and to retain ownership.

Shivers also suggests that the purpose and policy of the

ARPA support his conclusion. By encouraging private collection of4

non-”archaeological resources”, the ARPA may actually help

safeguard these resources, protecting them from further dislocation

caused by either human or natural disturbances. To achieve such

protection, Congress did not explicitly retain a n ownership

interest in non-”archaeological resources” found on public lands,

though it did pre vent private ownership of statutorily covered

artifacts. Shivers urges that the asserted failure to retain

ownership over non-”archaeological resources” evinces congressional

intent to cede their ownership to private collectors.

But the premise on wh ich Shivers’s argument rests is a

faulty one, belied by the very passage on which he relies. Section

470kk(b) provides that “ [n]othing in this chapter applies to

. . .

the collection for private purposes of any rock, coin, bullet, or

mineral which is not an archaeological resource

. . . .” (emphasis

added). Because the ARPA does not apply to artifacts less than 100

years old, it does not regulate the private collection of such non-

“archaeological resources”. This statute cannot vest Shivers with

an ownership interest in the tokens because it neither divests

ownership interest from the United States or, indeed, says anything

at all about “archaeological resources” it does not cover.

Even assuming arguendo that the ARPA regu lates private

collection of non-”archaeological resources,” however, Section

470kk(b) does not transfer to or vest ownership of the Aldridge

tokens in Shivers. The statute merely provides that private

collectors need not obtain a permit for the collection of certain

artifacts. Shivers implies a transfer of property rights from this5

provision, arguing that since the statute allows for the private

collection of non-”archaeological resources,” it necessarily

entitles the collector to retain or own what he has collected.

This conclusion, however, is neither supported by the text of the

statute nor is it a necessary implication of the right to collect

non-”archaeological resources.” Admittedly, the express statutory

authorization to collect non-”archaeological resources” without a

permit is much less valuable to a private collector if he may not

retain what he collects; unless the collector enjoys collection for

its own sake, ARPA furnishes little incentive to discover and

gather non-”archaeological resources.” But it would not be absurd

to conclude that Congress dispensed with the cumbersome process of

requiring permits for gathering non-”archaeological resources,”

even though it refused to transfer ownership of these less ancient

artifacts.

Further, the ARPA is concerned wi th protecting the

integrity of archaeological sites, presumably even moreso if they

are located in national forests. S ee, e.g., 16 U.S.C. §

470cc(b)(1)-(b)(2) (requiring that those who apply for a permit to

excavate archaeological resources be “qualified to carry out the

permitted activity.”); 36 C.F.R. § 296.8(a)(1); 1979 U.S.C.C.A.N.

1709, 1712 (recognizing the importance of protecting the unaltered

integrity of archaeological sites). The record suggests that

several hundred shovel holes found at the Aldridge si te were1 These figures are taken from a report relied upon by the district

court and prepared by an Assistant Forest Archaeo logist for the United States

Forest Service. This report also concludes that many of the holes attributed to

Shivers were not backfilled after excavation. S hivers does n ot challenge the

accuracy or conclusions of the report.

6 attributed to Shivers’s excavation activities. 1 Considering the

resulting landscape alteration, Congress’s intent to regulate

digging or exc avating on public archaeological sites is easy to

understand, while Shi vers’s contrary position in favor of

encouraging unregulated amateur collection is virtually

incomprehensible.

Finally, the “arrowhead exception” to the ARPA discussed

by Shivers is inapposite and irrelevant. This exception is not

intended to encourage removal of arrowheads from public lands, but

rather to exempt such removal from the civil and criminal penalty

provisions of the ARPA. See 16 U.S.C. § 470ff(a)(3); 36 C.F.R. §

296.3(a)(3)(iii). Unlike the tokens excavated by Shivers, the

arrowhead exception is limited to those found on the surface of

public lands. S ee 16 U.S.C. § 470ff(a)(3) (“[n]o penalty shall be

assessed

. . . for the removal of arrowheads located on the surface

of the ground.”). Also, the ARPA expressly provides that the

removal of arrowheads can be penalized under other regulations or

statutes. See, e.g., 49 Fed. Reg. 1016, 1018 (“regulations under

other authority which penalize [the removal of surface arrowheads]

remain effect ive.”) No inferences or implications helpful to

Shivers are found in these provisions.

Because the ARPA does not vest Shivers with an ownership

interest in the tokens, we need not discuss the Forest Service7

regulations, relied upon by the government, which go beyo nd ARPA

and attempt to define as “archaeological resources,” prohibited

from excavation, artifacts that are at least 50 years old. S ee 36

C.F.R. §§ 261.2, 2 61.9(g). The asserted conflict between the

Forest Service regulations and the ARPA does not need to be

resolved in this case.

C. Ownership and the Federal Common Law of Finds

The district court concluded not only that the ARPA did

not convey to Shivers an ownership interest in the Aldridge tokens,

but also that in the absence of express or statutory title

transfer, the federal common law of finds dictates that the United

States, not Shivers, owns the tokens.

The federal common law of finds, including certain

critical exceptions, is pertinent to this case. As the Eleventh

Circuit explained,

[t]he common law of finds generally assigns

ownership of the abandoned property without

r egard to where the property is found. Two

exceptions to the rule are recognized: First,

when the abandoned property is embedded in the

soil, it belongs to the owner of the soil;

Secon d, when the owner of the land where the

property is found (whether on or embedded in

the soil) has constructive possession of the

property such that the property is not ‘lost,’

it belongs to the owner of the land.

Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d

1511, 1514 (11th Cir. 1985) (emphasis added). In Klein, a vessel

submerged beneath the waters of Biscayne National Par k, Florida,

had been rediscovered and salvaged by a private diver. Holding

that the wreck was property of the government, not the diver, the2 Analyzing the ARPA, Judge Posner has also explained that “there is

no right to go upon another person’s land, without his permission, to look for

valuable objects buried in the land and take them if you find them.” U nited

States v. Gerber, 999 F.2d 1112, 1114-15 (7th Cir. 1993), cert. denied,

___ U.S.

___, 114 S. Ct. 878 (1994).

8 court emphasized that the “ship is buried in the soil. The soil

belongs to the United States as part of its national park system

.

. . . When the United States acquired title to the la nd from

Florida in 1973, it also acquired title to the shipwrecks embedded

in that soil

. . . . Thus the United States has never legally lost

the subject shipwreck and, as the owner of the land on and/or water

in which the shipwreck is located, it owns the shipwreck.” I d. at

1514 (emphasis added). Similarly, the Aldridge tokens excavated by

Shivers were buried in the soil of the Angelina National Forest.

As in K lein, this soil belongs to the United States, and with it

the embedded tokens under the first exception to the federal common

law of finds discussed in Klein. 2

Shivers does not challenge this interpretation of the

federal common law of finds. Indeed, his only retort is that the

common law of finds is inapplicable because Congr ess expressly

provided in § 470kk(b) of the ARPA that private collectors enjoy

ownership of the non-archaeological resources that they discover on

public lands. As already discussed, this contention is

i ndefensible. The district court correctly held that the United

States owns the tokens that Shivers discovered.9 CONCLUSION

For the foregoing reasons, the judgment of the district

court denying Shivers’s 41(e) motion for the return of the Aldridge

tokens is AFFIRMED

.