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Digging In: An In-Depth Look at the Archaeological and Paleontological Resource Acts: The Legal Perspective

Constance L. Rogers, Proceedings of 56th Annual Rocky Mountain Mineral Law Institute (2010)

This chapter explores the legal implications1.1 of the Archaeological Resources Protection Act (ARPA)2 and the Paleontological Resources Preservation title of the Omnibus Public Land Management Act of 2009 (PRPA)3 for natural resource development on federal lands. Unlike the more familiar National Historic Preservation Act (NHPA),4 which is largely procedural and provides little substantive protection for archaeological sites, both ARPA and PRPA impose criminal and civil penalties for excavation and damage to a defined set of federal heritage resources.
Public land agencies and the U.S. Department of Justice have long utilized criminal ARPA enforcement, pursuing cases against persons engaged in egregious instances of intentional looting and trafficking. The recent incidents in the Southwest demonstrate that the criminal enforcement effort remains robust,5 although this chapter will not address ARPA's crimi- [14A-3] nal provisions. Increasingly, agencies are using ARPA's civil enforcement mechanisms to pursue sanctions on activities resulting in unintentional damage to archaeological resources.
Despite ARPA's longevity and its broad tools for protection of archaeological resources, there are only three federal court decisions and a similar dearth of published administrative decisions interpreting ARPA's civil provisions. This lack of judicial guidance provides uncertain