U.S. v. Shivers, 95-40748
| Decision Date | 13 September 1996 |
| Docket Number | No. 95-40748,95-40748 |
| Citation | 96 F.3d 120 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Billy Ray SHIVERS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Tom N. Kiehnhoff, Office of the United States Attorney, Beaumont, TX, for U.S.
Claude E. Welch, Lufkin, TX, John Wesley Tunnell, Austin, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Texas.
Before KING, JONES and DUHE, Circuit Judges.
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. § 470ee, or the common law of finds. This court approves the district court's conclusion and therefore affirms.
The tokens that Shivers 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 pursuant to a search warrant from Shivers's home when the government came to believe he had obtained them in violation of ARPA, which forbids 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 the 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.
As Shivers expressly concedes the factual findings of the district court, this court reviews the district court's conclusions of law de novo. Palma v. Verex Assurance, Inc., 79 F.3d 1453, 1458 (5th Cir.1996).
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 and evaluation of these resources. See 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 regulations promulgated pursuant to this chapter.... No item shall be treated as an archaeological resource under regulations under this paragraph unless 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. See 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 U.S.Code Cong. & Admin.News pp. 1709, 1710. Since the Aldridge tokens are between 50 and 100 years old, however, they are not "archaeological resources" for purposes 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 remove 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 of 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 an ownership interest in non-"archaeological resources" found on public lands, though it did prevent 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 which 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 regulates 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 this 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 with protecting the integrity of archaeological sites, presumably even more so if they are located in national forests. See, e.g., 16 U.S.C. § 470cc(b)(1)-(b)(2) (); 36 C.F.R. § 296.8(a)(1); 1979 U.S.C.C.A.N. 1709, 1712 (). The record suggests that several hundred shovel holes found at the Aldridge site were attributed to Shivers's excavation activities. 1 Considering the resulting landscape alteration, Congress's intent to regulate digging or excavating on public archaeological sites is easy to understand, while Shivers'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 ...
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