The Writing on the Wall for Cultural Treasures?

In a case with ramifications for archeological treasures across the West, the Justice Department is asking the U.S. 9th Circuit Court of Appeals to reconsider a ruling that freed two men convicted of stealing ancient petroglyphs in Nevada.

“There is a good deal at stake here,” said Sherry Hutt, a former Superior Court judge from Arizona who has written books on the subject and now heads a related program at the National Park Service.

The appellate court in San Francisco concluded in March that the two accused looters clearly were guilty of stealing the boulders that bear rare etchings of an archer and a bighorn sheep but that the government failed to prove two critical elements in the case: that the artifacts, which were on national forest land, were worth at least $1,000 and that the defendants knew or should have known that what they were stealing had archeological value.

The ruling “effectively provides a license to steal” petroglyphs and other things “that clearly have intrinsic -- and often culturally important -- value, but which defy efforts to reduce that value to monetary terms,” Assistant U.S. Atty. Robert Don Gifford wrote in the petition for a rehearing.

“The panel’s decision effectively leaves the government without the means to stop the needless, careless and intentional destruction of archeological sites and organized and intentional theft of the valuable remains of previous civilizations,” he said.

Hutt, who manages a Park Service program under the Native American Graves Protection and Repatriation Act, called the concerns valid.

“Essentially the government must prove the defendant knew this was an archeological resource and knew the actual scientific benefit -- which essentially says only archeological scientists could be convicted in such a case,” she said.

Congress passed the Archeological Resources Protection Act in 1979, then strengthened it in 1988 after a 1987 study found that looting and vandalism had damaged 32% of known sites on National Park Service, U.S. Forest Service and Bureau of Land Management lands in the Four Corners states -- Colorado, Arizona, New Mexico and Utah.

The Park Service alone recorded 11,000 violations nationally in 2002, but scientists said it was difficult to know how much was being lost.

The Society for American Archeology started a public education program 15 years ago “because of this exact problem,” said Maureen Malloy, the group’s education manager. “There are so few enforcement people able to document the problem.”

The two men in the Nevada case admitted they used a winch to remove three boulders with petroglyphs from the Humboldt-Toiyabe National Forest in August 2003. But they insisted they didn’t know they were breaking the law, partly because no signs marked the site.

A federal jury found them guilty of theft of government property but acquitted them of unlawful excavation of archeological resources. John Ligon of Reno originally was sentenced to two months in jail; Carroll Mizell, who then lived in Van Nuys, was sentenced to four months and ordered to pay $13,169.

Forest Service officials think the petroglyphs are at least 1,000 years old, and an agency archeologist testified that they had an archeological value of about $8,000. William Dancing Feather, cultural resources coordinator for the Washoe Tribe, said the tribe considers them priceless.

But Scott Freeman, a lawyer for Ligon, said such a valuation was subjective. “With all due respect to Mr. Dancing Feather, what may be priceless to one person because of their cultural heritage may not be priceless to someone else,” he said.

In a move criticized by the 9th Circuit panel, prosecutors chose not to introduce an Arizona art gallery owner’s appraisal as evidence. He had estimated that the boulders could be sold for $1,500 if they were in good condition, but that because they were badly scarred when they were removed, their commercial value was $800 to $900.

The 9th Circuit said that under federal law, archeological value is not the value of the artifact itself but of all the archeological knowledge that goes with it, based on how much it would cost to obtain that knowledge.

“The government’s choice not to introduce any evidence of ‘value’ within the meaning of [federal law] unfortunately leaves us little choice,” Judge William A. Fletcher wrote.

“It is clear that Ligon and Mizell stole the petroglyphs. It is equally clear that the petroglyphs had a market value,” he said.

“But the government did not introduce that report into evidence, or indeed anything else that might have served as evidence of ‘value’

David Houston, a Reno lawyer who represented Mizell, said the appellate judges were uncharacteristically blunt in their criticism of the prosecutors.

“The petition for rehearing is the government’s way to try to heal a black eye,” Houston said. “The 9th Circuit felt as we did: You’ve got a value, so use it.”