In a case with ramifications for archaeological treasures across the West, the Justice Department is asking the 9th U.S. Circuit Court of Appeals to reconsider a ruling that freed two men convicted of stealing ancient petroglyphs in Nevada.
"There is a good deal at stake here," said Sherry Hutt, a former Superior Court judge from Arizona who has written books on the subject and now heads a related program at the National Park Service.
The appellate court in San Francisco concluded in March the two accused looters clearly were guilty of stealing the boulders with rare etchings of an archer and bighorn sheep but that the government failed to prove two critical elements in the case:
The artifacts on national forest land were worth at least $1,000, and the accused looters knew or should have known what they were stealing was of archaeological value.
Upshot: The prosecution did not offer any economic value of the artifacts (they had one appraisal for $800-900 but did not introduce it) and did not demonstrate that the looters knew the scientific value of the objects. Thus, there was no warrant to convict on the basis of the ARP. They didn't get off scott free though:
A federal jury found them guilty of theft of government property, but acquitted them of unlawful excavation of archaeological resources.
Since you can't pick up a random rock -- or anything else -- off of Federal land legally.
Not sure how this translates into the fear that this "effectively provides a license to steal" since stealing anything can get you convicted anyway, except to get it out of ARP application. But it does seem to undermine the idea that you can apply ARP on anything just by waving around the scientific or cultural "value" of an object. So it appears that the court has ruled that any non-monetary value is basically inadmissible.
I could be misinterpreting this though. Read the whole thing and see what you think. I'm gonna try to contact some of the particulars.
UPDATE: Looking through this again, I see this paragraph:
The 9th Circuit said under federal law, archaeological value is not the
value of the artifact itself but of all the archaeological knowledge that
goes with it, based on how much it would cost to obtain that knowledge.
So, maybe they're saying the prosecution here didn't sufficiently detail what the monetary value of obtaining the archaeological/scientific information (which I assume means how much it would cost to go acquire, conserve, study, and publish on these objects) would be; hence, without either that or a market value, the ARP was not applicable.
UPDATE II: More here. This quote*:
“Essentially the government must prove the defendant knew this was an archaeological resource and knew the actual scientific benefit - which essentially says only archaeological scientists could be convicted in such a case,” she said.
Seems to indicate that the court threw out any notion of scientific value that can't be assigned a monetary value and isn't explicitly designated an archaeological "site" which is what the defense argued by saying it wasn't posted as such. Which seems kind of dumb since you really can't expect the NPS to survey every square inch of federal land and put signs up wherever there's an artifact.
* That one was in the original story, too, but didn't make a lot of sense to me in that context.
UPDATE III: Came across this link while looking up some of the personalities involved. It's a free text of a book, "Protecting the Past", put out by CRC Press:
. . .edited by George S. Smith and John E. Ehrenhard and published in 1991 by CRC Press, is a collection of 37 contributions from 48 authors that presents some of the current thinking and ongoing work in the field of archeological resource protection. It is written for a diverse audience-archeologists, attorneys, educators, and others-who can most effectively help decrease the amount of archeological resource crime taking place in America.