copyright © 1996, Electric Nevada
|"We're losing our lands," said Tom Fee.|
said the treasurer of the Silver State Treasure Hunters,
a Reno-based association of metal-detector hobbyists, is
the significance of what the U.S. Forest Service did to
John, a friend of his who was looking for gold-nuggets in
the Tahoe National Forest. [see
last week's story]
"He got burned pretty bad," said Fee.
"He was metal-detecting there; he didn't know he was out of bounds, or off limits. There [were] no signs.
"So [he] got nailed, and it cost him a lot of money with an attorney."
Fee and other metal-detector hobbyists -- they call themselves 'detectorists' -- say the U.S. Forest Service is imposing rules on Westerners far beyond the agency's actual legal authority, as granted in the Archaeological Resources Protection Act of 1979, commonly known as ARPA.
"The Congress gave the different agencies, such as the BLM and the Forest Service, the task of writing regulations to cover this law," said Fee. "And they just went overboard -- especially the Forest Service. They went way overboard in their interpretation."
"You know, there's 10 million square nails in the Nevada desert, around ghost towns. You could get cited for picking up a square nail, because it's over 100 years old."
To test that claim, Electric Nevada asked Dick Markley, top archaeologist for the Tahoe National Forest, about the scope of one regulation, under which John had been cited and required to appear in federal court.
Regulation 261.9 (h), in the Code of Federal Regulations, not only bans "[r]emoving any prehistoric, historic or archaeological resource, structure, site, [or] artifact" from a national forest, but also, more generally, removing any "property."
Markley acknowledged the range of latitude Forest Service officers have regarding whether to cite someone or not, but said federal magistrates are the "check point" to protect citizens from individual officers who might abuse their discretion.
"In reality those law enforcement folks are always having to use some judgment in trying to understand what is the law, what does the regulation say, is this person violating or not," he said.
"And the check point in all of this of course is the magistrate, who has the opportunity to say, 'No. In my view, in my viewing of the regulations, you were wrong. This is not something that's protected under 261.9 -- it's something else.'
"And so then the officer learns, 'Okay, I understand now. The judge interprets -- helps interpret for me what's a violation and what's not.' And they learn from that, and then they know they're not to cite, and they learn to know what kinds of things the judge in this case is going to demand that there be, before a judgment is made against a person."
Markley was also asked about reports circulating among the Silver State Treasure Hunters that a Reno college student had been cited for removing three pine cones, which he intended to give to his grandmother.
"Yeah, well," Markley said, "I bet a story like that went like wildfire over the Internet -- the evil federal government again, out there protecting those pine cones."
He acknowledged, however, that Forest Service officials can make judgment calls to cite people for removing pine cones or anything else from the forest.
"There are various permits required, whether it's getting Christmas trees or collecting things. Generally I would say pine cones is not a problem, unless you're doing it for commercial purposes.
"There's a whole host of things that people tend to routinely collect, which we call 'forest products.' It could be anything from pine boughs, pine cones, lady bugs, sand, rocks...
"And, generally speaking, there are no prohibitions against those, like I say, unless there's a commercial use. And we do really have problems with that. We have folks who come up and take truckloads of things, decimate populations of bear grass and various other kinds of things that are used for floral arranging and so forth.
"In my experience, if the Forest Service took a case before a federal magistrate, for taking three pine cones, that would be ridiculous ... probably. There's got to be more to that case."
John, however, told Electric Nevada other officers at the federal agency explicitly told him nothing can be removed from a national forest.
"I've been told by our local law enforcement officer for the Forest Service here in Reno -- I called him right after I talked to the one up in Truckee -- and he told me, 'you can't pick up anything in a forest -- not a pine cone, not a rock, nothing,' said John.
"I said, 'What if I'd found a gold nugget?' -- because I was out gold prospecting. He says, 'Well, you're not allowed to pick it up.'
"I didn't realize that, and I don't think many people do."
The Reno attorney who represented John in his negotiations with the Forest Service this year says the federal government doesn't appear to have consistent rules on such matters.
"I was out sagehen hunting this weekend," said Louis Test, "and, as I was hunting, I found some arrowheads out there. And I feel nervous about picking them up anymore. You used to do it all the time as a kid growing up in Nevada.
"Basically what I heard from the BLM is, 'it's all right -- if you're not primarily out there looking for arrowheads. If it's incidental and you find it while you're walking along, that's fine, but if you're out there actually looking for them, and going to sites and trying to dig, and things like that, then it's against the law. But if you stumble across an arrowhead when you're out there hunting, or fishing, and you pick it up, there isn't a problem.'
"But that isn't what this law says. This law says, 'if you pick it up, or you remove it, you're in trouble!'
Markley says he gets discouraged by the degree of polarization that has arisen between the Tahoe National Forest and area detectorists. He wishes, he says, more attention was paid to "a really successful program" the national forest has "that involves metal detector folks in archaelogical site studies and historical research."
Others, though, say antagonism arises naturally in a situation where unelected national bureaucrats are armed with essentially unlimited regulatory power and face no repercussions if they use it abusively.
"There's no down side for these guys," says William Perry Pendley, excessive director of the Colorado-based Mountain States Legal Foundation. "They abuse their authority, and unfortunately, nothing ever happens that will dissuade officials."
Pendley, who was in Reno this year for a book-signing, said the daughter of Fee's friend John was in the bookstore, saw the title of his book - War on the West: Government Tyranny in America's Great Frontier -- and came up and began to describe her father's case.
"From what she related to me, it sounds like it was a terrible abuse of process," he said.
"Number 1, [the site] wasn't posted; there was no way that a reasonable person would know that he or she should not be in the area.
"Number Two ... what the guy discovered was a modern age Pepsi can with a piece of glass inside of it -- a piece of colored glass. And they basically, on the scene, said, 'Okay, fine, but don't do this anymore.' Then, boom, the sky fell on him, and he was browbeaten into basically performing indentured service for them."
As part of the agreement worked out with the Forest Service by his attorney, John pled no contest to the Forest Service charges and agreed to do forty hours of what the U.S. agency termed "community service" -- using his metal detector under agency supervision on an archaeological site project.
"In regard to regulatory overkill, and the willingness of federal officials to be oppressive and overreach, yeah, I think this is pretty typical," Pendley told Electric Nevada.
"I know of a number of situations, in which the regulators have talked to the private citizen and said, basically, 'You'd better go along with us here, or, you know, we're having a hard time deciding whether we should charge you civilly or criminally, and of course if we make the decision to go after you criminally, then of course, you could go to jail.'"
When an individual is looking into the gun barrels of "the largest law firm in the world," says Pendley, it's no wonder that many of them choose not to fight.
Electric Nevada mentioned that it had agreed not use John's real name because he feared retaliation by the Forest Service. Pendley leapt upon that.
"Geez -- think about what you just said," he remarked.
"That's the kind of thing you say when a guy's running from the mob! Or a guy's running from the drug cartel in Columbia. Or a guy's part of the Crips and the Bloods in Los Angeles, and he's fleeing, and he's on the run.
"You say, 'He doesn't want his name known.' I mean, this is a guy talking about the United States Forest Service and the United States Department of Justice. That's a stunning statement.
Now, I don't blame him. I not saying he's overreacting. I say, 'Yeah, I understand why he's afraid.' But just imagine, that a person has that kind of fear..."
Ron Stockman, an activist for detectorist and collecting causes who runs the non-profit northern California Mother Lode Research Center, says that
Top of page
instilling fear in people so they don't speak publicly
about their experiences with the Forest Service is
something that agency officials regularly try to do.
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