Message #368:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Metal Detecting on National Forests
Date: Fri, 15 Nov 96 08:04:00 MST
Encoding: 271 TEXT


From: Michael Pfeiffer 

Previous comments:
From: Judy A. Rose:R05A
Here is Evan's final response in relation to the metal detecting letter.  If 
any of you get inquiries, you may use this as a model for your response.  Do 
some careful proof reading on it though; I did notice some typos.  Please 
note that the WO has requested a formal OGC opinion on the effects of the 
5th circuit court ruling; this may may mean a reconsideration of our current 
policy.

Previous comments:
From: Evan I. DeBloois:WO
For your information, here is the final draft of the letter I have sent to 
Keith Wills in response to his questions about metal detecting on the NFS. 
This has been reviewed by OGC and LE and reflects current FS policy on the 
use of metal detectors.  We are continuing to examing our policy in light of 
the recent 5th Circuit Court decision, which seems to expand the definition 
of what is inappropriate to remove from federal lands.  We are asking OGC to 
provide an opinion on the ramification of this decision on NFS management.

Mr. Keith Wills
Federation of Metal Detector & Archeological Clubs, Inc.
South Central Chapter
201 South Montgomey Street
Gilmer, TX  75644

Dear Mr. Wills:

Thank you for your letter regarding our policy on the use of metal detectors 
within the National Forests and Grasslands (NFS).  I appreciate the 
opportunity to respond to your questions and hopefully I can clear up some 
of the confusion that may exist about which activities are permitted, and 
which activities may be in violation of the laws, regulations and policies 
governing metal detector use in the National Forests.

I will answer your questions, individually, in the order you asked them.

Question 1:   The Archaeological Resource Protection Act (ARPA) sets two 
criteria which must be met by National Forests in considering whether a site 
or artifact is significant for protection: (a) the site or artifact must be 
at least 100 years of age, and, (b) must be of archaeological interest. 
Within the parameters of the scientific definition, what do your National 
Forest archaeologists/historians utilize to determine what is of 
archaeological interest?

You are correct that ARPA protects resources of archeological interest that 
are over 100 years old.  The statute defines archeological resources 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."  It goes on to state "... no item shall be 
treated as an archeological resource under regulations under this paragraph 
unless such item is at least 100 years of age."  One must, therefore, refer 
to the uniform regulations to determine what is of archeological interest.

The regulations define the phrase as follows:  "Of archaeological interest 
means capable of providing scientific or humanistic understanding of past 
human behavior, cultural adaptation, and related topics through the 
application of scientific or scholarly techniques such as controlled 
observation, contextual measurement, controlled collection, analysis, 
interpretation and explanation."

Please see the definition of "material remains" in the regulations for 
examples of what is protected by ARPA.  You need, however, to keep in mind 
that, for the protection of all resources on Federal land and for the 
protection of visitors, other statutes and regulations do protect resources 
which are not protected under ARPA.  For instance, the regulations at 36 CFR 
261 prohibit "damaging any natural feature or other property of the United 
States" as well as "removing any natural feature or other property of the 
United States" and "Digging in, excavating, disturbing, injuring, 
destroying, or in any way damaging any prehistoric, historic, or 
archeological resource, structure, site, artifact, or property" or "Removing 
any prehistoric, historic, or archeological resource, structure, site, 
artifact, or property."  Violations of these prohibitions are punishable by 
a fine of not more than S5000 or imprisonment of not more than six months or 
both.  While removal of arrowheads found on the surface is exempted from 
prohibition under ARPA, the regulations quoted  above prohibit their removal 
from Forest Service lands.

Please see section 296.4 of the enclosed regulations which lists the acts 
which are prohibited by ARPA and the possible penalties.

Forest Service heritage specialists must rely upon their training and 
knowledge of the resource to determine what is of archeological interest as 
defined in ARPA regulations.  They must do the same when applying other 
regulations, such as 36 CFR 261, which protect prehistoric, historic, and 
archeological resources.  ARPA does not provide a formula or prescribed 
methodology that archaeologists or  historians must follow. Rather FS 
historians and archaeologists must consider several factors including the 
condition of the archaeological resource, the status of research relative to 
that type of resource, the potential for the resource to provide scientific 
or humanistic information, and then they must draw upon their knowledge of 
research methods, tools, and techniques to establish that the archaeological 
resource is "of archaeological interest."

Question 2:   Does your National Forest adhere to a policy that every cabin, 
sawmill, commercial, town or encampment, mining area, or other scenes of 
human activity of the region are to be considered as significant 
archaeological/historical sites worthy of protection?

No.  There is no policy establishing that all sites are significant or 
worthy of protection.  However, until a site assessment is made that 
concludes that an individual site is not of archaeological interest, is not 
eligible for inclusion on the National Register of Historic Places, and 
possesses no other value or interest which would deserve protection, all 
sites are managed as though they are significant, eligible, or of 
archaeological interest, as is required by the National Historic 
Preservation Act.

Question 3:   If there is a clear established public or private record of a 
site that is accessible through recorder's offices, etc., does your National 
Forest still require a "dig" be performed at the site?

No.  The FS does not require that archaeological "digs" be performed at any 
site.  In fact, the FS endeavors to protect, in place, archaeological 
resources to the extent possible.  Most commonly, archaeological excavations 
occur 1) at sites that are threatened by modern developments and activities, 
2) at sites that are to be transferred out of federal ownership and 
protection, or 3) at sites that have been damaged and information is needed 
to determine what restoration work may be appropriate.  The decision to 
excavate a site does not hinge on whether or not there is a public record or 
private record of a site.  The existence of such a record does not 
necessarily enhance or diminish the importance of a site, the level of 
archaeological interest, or the priority for excavation.

Question 4:   Are all objects found retrieved, recorded, and stored, or put 
on public display? If not, what happens to them and will the public have 
access to view them?

Not all objects that are found by FS personnel are retrieved.  When FS 
personnel examine National Forest system lands to determine if 
archaeological resources are present (called an archaeological survey) 
generally only those objects that are at risk of being stolen or damaged are 
collected. These objects are documented and maintained in a temporary 
archives on the Forest, or sent to a museum.   When archaeological sites are 
excavated by FS personnel or by archaeological consultants/contractors, the 
excavated objects are retrieved, documented and sent to a museum.  Whether 
the objects are held by the FS or at a museum, they may be periodically 
displayed in public exhibits.  Many objects from the FS are on display at 
various museums, visitor centers, and administrative offices.   Objects not 
on display are available to qualified researchers to view, examine, and 
study.

Question 5:   Will all sites discovered by your scientists in the field be 
registered and then opened for public view?

All sites discovered by FS personnel are recorded and entered into the 
statewide archaeological inventory systems.  Because of the number of sites 
identified each year, budgetary limitations, etc., not all sites are 
immediately evaluated for their potential inclusion in the National Register 
of Historic Places.  Sites may be developed for public viewing, or their 
locations may be kept confidential and the sites preserved for scientific 
study, or sites may be managed in a variety of ways depending on the nature 
of the site, how vulnerable it may be to vandalism and theft, and the 
availability of funding.

Question 6:   Since 1990, how many sites within your National Forest have 
been accepted by the National Historical Register? How many have been 
rejected?

Since 1990, 380 Forest Service properties have been added to the National 
Register of Historic Places.  An additional 33,036 have been evaluated and 
determined to meet the eligibility criteria.  Another 26,978 have been found 
not to meet the criteria, and another 127,848 properties have yet to be 
evaluated against the criteria of eligibility.  Of all the properties 
submitted to the Keeper of the National Register, only two have been 
returned as ineligible in the last 15 years.

Question 7:   Are "scatters",  such as broken glass, tin cans, old pipe, 
horseshoes, and other common manufacture items considered by your National 
Forest to be off-limits to public collecting?

Collecting any of the items you list can result in a violation of ARPA if 
they are over 100 years old and they are of archaeological interest. 
Additionally, the Secretary of Agriculture's regulations at 36 CFR 261, 
protect any prehistoric, historic, or archaeological  resource, 
structure,site, artifact, or property.  Whether items are of common or 
uncommon manufacture has little bearing on whether they are of 
archaeological interest, eligible for the National Register of Historic 
Places, or have more or less historical value.  For example, all of the 
items you list could occur at any of the more than 125,000 historic period 
properties so far identified and could occur at more than half of the 873 
properties listed for NFS lands on the National Register. Those engaged in 
relic collecting on public lands assume the risk that they may remove 
objects of archaeological or historical value and thus they may  violate 
federal laws and regulations designed to preserve such objects on public 
lands.

Question 8:   How many archaeologists/historians does your Office of the 
National Forest Service employ? How many annual volunteers in the fields? 
 What is your Office of the National Forest Service annual budget 
allocations for these activities?

The FS employs about 400 archaeologists/historians on its permanent staff. 
In addition, it hires some temporary employees each year.  These heritage 
specialists perform archaeological surveys and other work the FS is required 
by law to perform as stewards of the archaeological and historical resources 
within the NFS.  The annual budget for heritage resource program activities 
is about S13.5 million.  Additional funding is provided by other forest 
resource programs each year to pay for any archaeological surveys that may 
be needed before development projects may occur.  The FS has an active 
volunteer program.  In 1995, volunteers contributed nearly 75,000 hours 
serving as site stewards, assisting heritage professionals in performing 
archaeological surveys and excavations, historic building stabilization 
projects, and other heritage resource management activities. Many of your 
members may be aware of the on-going programs the FS has for metal 
detectorists to participate in archaeological and historical work on a 
variety of National Forests through the Passport in Time program and other 
activities.

Question 9:   If a detectorist inquires at your district office where 
detecting can legally take place, will that person be given information as 
to where these areas are, and what areas the detectorist should stay out of? 


Visitors inquiring at NF offices can receive information on metal detecting 
within the FS.  Metal detecting can legally take place in most areas of the 
National Forest System, the key exception being archaeological and 
historical sites.  However, removal of materials from NFS lands can be 
problematic, particularly given the recent judicial decisions where the 
Federal common law of finds was ruled to apply to all items on or in Federal 
lands (se United States of American, Plaintiff-Appellee, v. Billy Ray 
Shivers, Defendant-Appellant, No. 95-40748, United States Court of Appeals, 
Fifth Circuit, Sept. 13, 1996; 1996 WL 520511 (5th Cir.(Tex))). In this 
case, the appellate court upheld the lower court's decision that token taken 
from NFS lands and claimed by a collector were ruled as belonging to the 
Federal government, based on the Federal common law of finds.

A few National Forests have issued blanket closures to metal detecting as a 
result of a high incident of resource damage both to historic properties and 
natural resources; most, however, have not.  Nonetheless, it is the 
responsibility of the detectorist to avoid disturbing, altering, or removing 
objects that may be protected by ARPA, the Secretary of Agriculture's 
Regulations at 36 CFR 261, and other statutes and regulations.  If you are 
unsure, it is best to contact one of the FS heritage specialists.  The 
Forest Service does not mark nor disclose the location of archaeological or 
historical sites, unless they are developed and interpreted for public 
visitation.  In fact, Sections of the ARPA and the National Historic 
Preservation Act prohibit disclosure of the locations of properties that 
might be subject to damage as a result of such disclosure.

Question 10:  Is prospecting for gold, both for commercial and recreational 
purposes, permitted in your district or any other National Forest and can a 
gold detector be utilized while so doing?

Prospecting for gold and other mineral deposits is permitted subject to the 
General Mining Law of 1872.  No permits are required for prospecting, and 
metal detectors may be used in this activity.  Prospecting that involves 
land disturbance requires the filing of a mining plan of operations. 
Detectorists should bear in mind that many of the mineralized lands within 
the NFS have been "claimed" by others who have sole right to prospect and 
develop the mineral resources found on the claim.  Detecting on a mining 
claim is ill-advised.  It is the responsibility of the detectorist to 
determine if an area has been claimed.  This can be done through County and 
Bureau of Land Management offices.  Occasionally, detectorists may search 
for treasure they believe may be buried within Federal lands; this activity 
requires a treasure trove permit issued by the FS prior to excavating for or 
removing any buried treasure.

Thank you for your interest in the National Forests.  If you or your members 
have any additional questions regarding metal detecting on National Forest 
System land, or would like to participate in our Passport in Time program, 
please let me know.

Sincerely,
EVAN I. DeBLOOIS
Federal Preservation Officer
Recreation, Heritage, & Wilderness Management