Hobbyists Fear Their Link With Land
Endangered by Federal Archaeologists

  by Steve Miller
  copyright 1996, Electric Nevada

"We're losing our lands," said Tom Fee.  
That, 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
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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.
"This is something I think you need to be aware of. The Forest Service -- that is how they operate in this kind of thing.
"You and your readers would probably not believe what really goes on," said Stockman.
"They [Forest Service officers] want to find these people, and they want to do all of these things to these people, but they don't want them to go out in the public and talk about it.
"The reason is because, I'm very sure, the Forest Service is well aware that if the public was to find out what's going on, they would immediately side with people like [John], as most people did, and [with] the kid who picked up the pine cones.
"We had an incident up in Oregon, here not too long ago, where we had a couple of young men in their twenties or so, who were out in the forest, and they were just wandering around.
"They didn't even have metal detectors -- they were just out looking -- and they came upon an old pile of tin cans, and they started rummaging through them, and, lo and behold, here shows up two Forest Service people, one of them an archaeologist, and they cite them, just like they did with [John], and of course these kids are frightened, because they're hearing things like 'five-thousand-dollar fine' and 'five years in jail,'
"So they go in and they immediately plead guilty, and the Forest Service tells them, 'Keep your mouth shut, and don't say what you paid in fines.' So this is not really unusual."
Forest Service archaeologist Markley scoffs at such reports.
"What I've viewed often times, is that [in] these kinds of cases, often what gets displayed around the Internet and so forth is part of the story. Usually it's the part that just makes it sound so absolutely ridiculous.
"Generally what happens is the person who's being cited is a family man, a veteran, a deacon in the church -- usually he has all those things. And usually the Forest Service officer is this evil, jack-booted ATF-type Waco officer, who's just out there to make life miserable for the poor forest user."
"Of course the Forest Service will deny that," responds Stockman, "but yet we know this is what goes on."
He says the fear some individuals have of speaking out often makes the work of the Mother Lode Research Center difficult.
But he says one detectorist the Center worked with, was not frightened.
"That is a man by the name of Billy Shivers, out of Texas...This was an incident that was ongoing since about 1992."
Shivers and two friends, Mr. and Mrs. Robert Nix, were out exploring, with Forest Service permission, an old sawmill site from the 1900s, says Stockman.
"They were just out there looking for things, and they had found some old tokens that [had been] used in lieu of money for mill-hand payment."
Two Forest Service officials -- a special agent and an archaeologist -- arrived on the scene, confiscated the collected metal tokens and all three individuals' equipment cited the trio for illegally collecting historical artifacts.
Then the next day the two officials, bearing search warrants, showed up at the homes of Shivers and the Nixes, rummaged through everything, and took out, says Stockman, "things which could not possibly have been related to this case."
"And then," he says, "they proceeded with the same pattern -- threatening these people, bullying them.
"Well, the Nixes caved in, they were so frightened, but Billy, being an old retired Air Force man, was not about to be threatened. We got involved, and several other organizations, and started hounding the U.S. Attorney's office, and pretty soon, they not only dropped the charges against Billy, and returned everything but some of the tokens, but they reversed the $500 fine, which is almost unheard of, against the Nixes [and] returned all their equipment.
"Robert Skyles, who was the archaeologist in that case was -- we understand -- asked to resign, and the special agent was transferred and even the federal attorney was transferred."
Contacted by telephone, Billy Ray Shivers, of Longview, Texas faxed to Electric Nevada not only copies of the federal search warrant requested and served by special agent Timothy Ballard, but also the letter sent to him and each of the Nixes by the United States Attorney's office of the Eastern District of Texas in October, 1992.
"Please be advised that it is the intention of this office to initiate prosecution against you for violations of..." two different titles of the United States Code, began the letter.
Under each title, it warned, "the range of punishment ... is a fine of not more than $250,000 and/or imprisonment of not more than two (2) years..."
Two years later, in July of 1994, after multiple letters from Shivers and others to members of the Texas congressional delegation, a new U.S. attorney wrote Mr. and Mrs. Nix that:
1) No charges would be filed against Shivers.
2) The Nixes would not have to testify against Shivers.
3) Evidence taken from their home would be returned.
4) The Nixes could withdraw their guilty pleas and the U.S. Attorney would file a motion supporting that request.
Stockman argues that the difficulties detectorists are having nowadays in the national forests do not stem from any real danger they pose to significant archaeological sites.
Instead, he contends, the hobbyists have run into the consequences of a hidden "jobs" agenda that was behind 1979's Archaeological Resource Protection Act.
"Realistically, prior to ARPA, if your son or daughter came home and announced to you they were going to become an archaeologist, you probably would have disowned them," says Stockman.
"Because there were really no jobs in that field. There were some in universities and museums, but it was not a field that offered a lot of opportunity.
"Well, with the advent of ARPA, all of a sudden this field opened up, because all of these agencies were going to have archaeologists and historians.
"There was one problem with that. It was all very good, no one complained about that, but when it came down to the number of really significant historical sites out there, there aren't that many.
"[In archaeology,] what they're looking for is something that's new, that's different -- something that's going to fill in the gaps or change what we know about history.
"Well, there just isn't that much in the United States.
"And so the archaeologists -- not all, but some of them -- started getting a little radical about the situation, saying 'Well, we're just going to have to take things that heretofore were really not considered of archaeological value, and convince government public land management agencies and the people, that they are.'
"So they started a campaign where pretty soon every cabin site, every ranch, every sawmill site, you name it, is significant in archaeological, historical value."
While Forest Service archaeologist Markley won't agree ARPA was really just a jobs program, he does acknowledge that the control government archaeologists have been given in the national forests "does present a sort of a dilemma.
"We get criticized sometimes, because, 'Well, gee, the archaeologists have control over all these resources and the public doesn't benefit.'
"The reality is," he says, "we have a lot of programs that actually take the knowledge gained from these archaeological sites and they turn into exhibits or programs or various things.
"We just did a thing the 28th of September; we had a day-long commemoration of the Donner Party ordeal. About 600 people showed up; we had artifacts from the excavation on display, and so forth.
"So there are benefits that the public gets. But it is, admittedly, tough on someone who wants to go out and just collect for their own collection purposes. It does limit them."
In the Tahoe National Forest, says Markley, federal archaeologists have identified "probably in the neighborhood of 3,000 archaeological sites; I'm guessing maybe half of those are historic-era archaeological sites. The rest are native American.
"And we have a process to go through and evaluate whether or not these sites have any archaeological interest or archaeological values.
"Admittedly, that's not a very-well funded part of the Forest Service program. The money we get from Congress to do that is pretty small. But nonetheless we've made pretty good progress: I think we've probably evaluated maybe 400 of the sites over the years. We'd like to evaluate a lot more. But in this day and age of less government, one of the things that we get less of, is money to do that kind of work."
Next week: Different Proposals for Solutions

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