‘Heads-up’ on Laws Regarding Artifacts

By Russ Balbirona

To the public, the mental picture of the metal detecting enthusiast is beginning to change. It wasn't that long ago that the average metal detecting enthusiast was viewed as a middle-aged, pooch-bellied man, clad in knee-high socks, a pair of '70s plaid shorts, jumbo-size headphones and swinging a five-inch long Geiger counter on the beach who at the end of the day had 47 cents, a spoon and a gold-plated earring for his efforts.

From coast to coast and everywhere in between, evidence of metal detecting's explosion into mainstream America is clearly visible. The metal detectorist is no longer viewed as the aforementioned sand-plodding, loose change seeker. Today, he or she is seen more as a serious treasure hunter and seeker of knowledge as well as fortune.

The popularity of metal detecting is a double-edge sword. It cuts both ways.

The good "cut" is that the sudden explosion in popularity brings more people  to the ranks of the hobby and in a world where the government is attempting to limit our rights to not only metal detect but access public lands, there is strength in numbers.

Now for the bad "gash." With thousands, of new metal detectorists running out into the field, there are bound to be issues. They range from not knowing how to retrieve targets in a way that causes little to no damage, trespassing and ignorance of laws and regulations governing metal detecting and treasure hunting.

These laws and regulations and ordinances vary from state to state, county to county and city to city. And, if that isn't confusing enough, there are also federal  laws that regulate or, at the very least, envelope what we do.

As it would be impossible to cover every law city by city or even state by state, a list of contacts can be found at: archaeology.uiowa.edu for regulatory laws governing metal detecting and artifact recovery state by state. Keep in mind that even if you are not on state-owned land, there are state laws that govern private property archaeological finds. If you are unsure of the private property laws governing your state, check the link for contacts in your state.

Federal law, being the supreme law of the land, doesn't change from state to state. Again, there are several different laws pertaining to the person who wishes to metal detect on public lands. These laws and regulations will vary by who is the custodian of the lands. For example, under the Code of Federal Regulations, the National Park Service and the U.S. Forest National Forest Service regulate 36 CFR, while the Bureau of Land Management and Bureau of Reclamation regulate 43 CFR.

The "Big Kahuna" when it comes to federal laws on metal detecting and treasure hunting is the Archaeological Resources Protection Act of 1979. ARPA will be cited and enforced no matter what federal or Indian lands you happen to be treasure hunting on. The keywords here are "federal" and "Indian" land as ARPA has no jurisdiction on private property, though state law may.

ARPA only covers archaeological resources and not mineralogical resources like gold, silver, copper and other precious and semi-precious minerals, which are covered by a whole different set of laws not be covered in this article.

What is an archaeological resource?

Simply, an archaeological resource is an artifact. OK, so what is an artifact?

•    Webster's defines artifact as: ar-ti-fact noun: something created by humans usually for a practical purpose; especially an object remaining from a particular period (caves containing prehistoric artifacts.)

•    The federal Bureau of Land Management defines an artifact as: Artifacts are objects made or used by humans. Examples of artifacts include pottery, baskets, bottles, weapons, arrowheads, rock paintings, and carvings. Artifacts also include graves and skeletal materials that are at least 100 years old.

•    ARPA defines an artifact (also known as an archaeological resource) as: (1) The term "archaeological resource" means any material remains of past human life or activities which are of archaeological interest, as determined under uniform regulations promulgated pursuant to this chapter. Such regulations containing such determination shall include, but not be limited to: pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items. Non-fossilized and fossilized paleontological specimens, or any portion or piece thereof, shall not be considered archaeological resources, under the regulations under this paragraph, unless found in archaeological context. No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age.

By reading the above excerpt of ARPA you can see that any man-made object or object used by man that is more than 100 years old is considered to be an artifact, therefore an archaeological resource under ARPA's definition, therefore protected, if on federal or Indian land.

By the strictest enforcement this would even mean a penny made as late as 1913 and even the rusty old tin cans commonly found littered about the grounds of ghost towns and abandoned mines could be considered artifacts if found on federal or Indian lands.   
ARPA provides one caveat by saying: "Nothing in subsection (d) of this section shall be deemed applicable to any person with respect to the removal of arrowheads located on the surface of the ground."

But, remember those CFRs enforced by the custodial federal agency, as it may be a 36 CFR violation if you were to remove a surface found arrow head from a national park.

While most CFR violations usually lead to a citation that may cost a few hundred dollars, an ARPA violation can be costly and even lead to jail time.

Section 7 ARPA states: Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: Provided, however, That if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person shall be fined not more than $100,000, or imprisoned not more than five years, or both.

You can find the Archaeological Resources Protection Act in its entirety at: cr.nps.gov/local-law/FHPL_ArchRsrcsProt.pdf.

By following the metal detecting and treasure hunting code of ethics (below) you can avoid 99 percent of the issues affecting metal detectorists and treasure hunters today.

Metal Detecting Code of Ethics

1.    Always check federal, state and local laws regarding metal detecting before searching.
2.    Respect landowners and always obtain permission before entering private property.
3.    Always use proper recovery methods. Fill all holes and do no damage.
4.    Always take your trash with you; leave the area better than you found it.
5.    Appreciate and protect our heritage of natural resources, wildlife and private property.
6.    As an ambassador of the sport, use thoughtfulness, consideration and courtesy at all times.
7.    Never damage or remove any historically significant or archaeological treasures.
8.    Always leave gates as found and never tamper with signs or equipment.
9.    Do not destroy property, buildings or what is left of any deserted ghost towns or structures.
       Source: Fisher Metal Detectors

Russ Balbirona is a treasure hunter, metal detector enthusiast and owner of RB Detector Metal Detector Sales. He can be reached at Russ@RBDetectors.com.