"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 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.
"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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