[MSN] Appeal focuses on protecting ancient sites

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Sunday, June 18, 2006 . Last updated 11:42 p.m. PT

Appeal focuses on protecting ancient sites

By SCOTT SONNER
ASSOCIATED PRESS WRITER

RENO, Nev. -- On the surface, it would be hard to imagine a simpler theft
case than the one against John Ligon. Three boulders bearing centuries-old
petroglyphs of an archer and bighorn sheep were part of his front yard
landscaping. So when the 9th U.S. Circuit Court of Appeals threw out
convictions against the Reno man and a co-defendant, it left prosecutors and
archaeologists questioning whether they have any legal weapon to fight what
already had been an uphill struggle: Stopping the plunder of unknown
thousands of ancient sites.

In asking the court for a rehearing, federal prosecutor Robert Don Gifford
said that its March ruling "effectively provides a license to steal"
petroglyphs and other artifacts.

Alanah Woody, an anthropologist at the Nevada State Museum and head of the
Nevada Rock Art Foundation, said the ruling nullifies widely publicized
convictions that had been viewed as a major victory for efforts to protect
archaeological resources.

"I don't think the citizens of Reno are happy about the decision," Woody
said. "They don't want this to happen anymore."

A three-judge panel of the court did not dispute that Ligon and Carroll
Mizell stole the boulders from the Humboldt-Toiyabe National Forest in
August 2003.

The problem, the ruling said, was that the government failed to prove two
critical points: It didn't show that the artifacts were worth $1,000, or
that the defendants knew or should have known they were stealing something
of archaeological value.


That's an impossible standard, said Sherry Hutt, a former Superior Court
judge from Arizona who manages a Park Service program under the Native
American Graves Protection and Repatriation Act.

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

Gifford wrote that the decision "effectively leaves the government without
the means to stop the needless, careless, and intentional destruction of
archaeological sites and organized and intentional theft of the valuable
remains of previous civilizations."

It was unclear when the San Francisco-based 9th Circuit would decide whether
to bring the case before the same three-court panel for a rehearing.

It is hard to know how many artifacts have been looted from ancient sites,
but the number must be large: The National Park Service alone recorded
11,000 violations in just one year, 2002. Only a tiny fraction of lootings
are prosecuted.

The two men in the Nevada case admitted they used a winch to remove the
boulders, but insist 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 archaeological resources. Ligon was
sentenced to two months in jail; Mizell, who then lived in Van Nuys, Calif.,
was sentenced to four months and ordered to pay $13,169.

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

Such a valuation is subjective, said Ligon's lawyer Scott Freeman.

"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.

An Arizona art gallery owner appraised the boulders' commercial value at
$800 to $900, but said they could have sold for $1,500 had they not been
badly scarred when they were removed.

That appraisal, however, was not introduced as evidence, a prosecutorial
move criticized by the 9th Circuit.

"It is clear that Ligon and Mizell stole the petroglyphs. It is equally
clear that the petroglyphs had a market value," Judge William A. Fletcher
wrote.

"But the government did not introduce that report into evidence, or indeed
anything else that might have served as evidence of `value' within the
meaning of (the law), although it obviously could have done so."

The government said the art dealer's estimate was not submitted because it
was not credible, but the defense questions that conclusion.

"The 9th Circuit felt as we did - you've got a value, so use it," said
Mizell's lawyer, David Houston.

The standard that looters can be convicted of a felony only if they knew or
should have known they were removing an archaeological resource was
established by the 9th Circuit in 2000.

The precedent applies only in the court's jurisdiction: Alaska, Arizona,
California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Those
states account for a large portion of the nation's ancient sites.