UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-40748
_______________________
UNITED STATES OF AMERICA
Defendant-Appellee,
versus
BILLY RAY SHIVERS
Plaintiff-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
September 13, 1996
Before KING, JONES, and DUHE, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Billy Ray Shivers found buried treasure at the site of an
abandoned lumber mill company town. Unfortunately for Shivers, the
site is located in the Angelina National Forest, and the federal
government claimed ownership of and seized from Shivers some 50-70
metal tokens he uncovered with a metal detector. The district
court denied his Fed. Rule Crim. Proc. 41(e) motion seeking return
of the tokens, as it concluded Shivers did not own them pursuant to
either the Archeological Resources Protection Act (“ARPA”), 16
U.S.C. § 470ee, or the common law of finds. This court approves
the district court’s conclusion and therefore affirms.
BACKGROUND
The tokens that Shivers excavated from the Aldridge
Lumber Company mill site were used by the saw mill as payment for
workers 50-100 years ago. The tokens and other items were seized
pursuant to a search warrant from Shivers’s home when the
government came to believe he had obtained them in violation of
ARPA, which forbids the un-permitted excavation of archeological
resources from federal lands.
When the government chose not to pursue criminal charges
against Shivers, it eventually gave back the rest of the seized
property, but refused to return the tokens to him. The district
court’s rebuff of Shivers’s Fed. R. Crim. Proc. 41(e) motion for
return of seized property gives rise to this appeal.
DISCUSSION
A. Standard of Review
As Shivers expressly concedes the factual findings of the
district court, this court reviews the district court’s conclusions
of law de novo. Palma v. Verex Assurance, Inc., 79 F.3d 1452, 1458
(5th Cir. 1996).
B. Ownership under the ARPA: 16 U.S.C. § 470kk
Shivers argues that the plain language of ARPA § 470kk
vests him with ownership of the Aldridge tokens because he is a
private collector of coins and other artifacts not defined by the
ARPA as archaeological resources.
ARPA was enacted by Congress to protect “archaeological
resources” found on public lands and to promote study and
2
evaluation of these resources. See 16 U.S.C. § 470aa(b). An
“archaeological resource” is statutorily defined 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 . . . . No item shall be treated as an
archaeological resource under regulations
under this paragraph unless such item is at
least 100 years of age.
16 U.S.C. § 470bb(1) (emphasis added). “Archaeological resources”
so defined remain property of the United States if removed from
public lands. See 16 U.S.C. § 470cc(b)(3); 36 C.F.R. §
296.6(b)(5); H.R. Rep. No. 311, 96th Cong., 1st Session, 7 (1979).
Since the Aldridge tokens are between 50 and 100 years old,
however, they are not “archaeological resources” for purposes of
the ARPA.
Shivers’s principal argument rests on a facile premise:
because the tokens are not “archaeological resources,” § 470kk of
the ARPA conveys an ownership interest to him as a private
collector of coins. Section 470kk provides that
[n]othing in this chapter applies to, or
requires a permit for, the collection for
private purposes of any rock, coin, bullet, or
mineral which is not an archaeological
resource, as determined under uniform
regulations promulgated under section 470bb(1)
of this title.
16 U.S.C. § 470kk(b). From this provision, Shivers infers that
private individuals are authorized by ARPA to remove coins less
than 100 years old from public land and to retain ownership.
Shivers also suggests that the purpose and policy of the
ARPA support his conclusion. By encouraging private collection of
3
non-”archaeological resources”, the ARPA may actually help
safeguard these resources, protecting them from further dislocation
caused by either human or natural disturbances. To achieve such
protection, Congress did not explicitly retain an ownership
interest in non-”archaeological resources” found on public lands,
though it did prevent private ownership of statutorily covered
artifacts. Shivers urges that the asserted failure to retain
ownership over non-”archaeological resources” evinces congressional
intent to cede their ownership to private collectors.
But the premise on which Shivers’s argument rests is a
faulty one, belied by the very passage on which he relies. Section
470kk(b) provides that “[n]othing in this chapter applies to . . .
the collection for private purposes of any rock, coin, bullet, or
mineral which is not an archaeological resource . . . .” (emphasis
added). Because the ARPA does not apply to artifacts less than 100
years old, it does not regulate the private collection of such non-
“archaeological resources”. This statute cannot vest Shivers with
an ownership interest in the tokens because it neither divests
ownership interest from the United States or, indeed, says anything
at all about “archaeological resources” it does not cover.
Even assuming arguendo that the ARPA regulates private
collection of non-”archaeological resources,” however, Section
470kk(b) does not transfer to or vest ownership of the Aldridge
tokens in Shivers. The statute merely provides that private
collectors need not obtain a permit for the collection of certain
artifacts. Shivers implies a transfer of property rights from this
4
provision, arguing that since the statute allows for the private
collection of non-”archaeological resources,” it necessarily
entitles the collector to retain or own what he has collected.
This conclusion, however, is neither supported by the text of the
statute nor is it a necessary implication of the right to collect
non-”archaeological resources.” Admittedly, the express statutory
authorization to collect non-”archaeological resources” without a
permit is much less valuable to a private collector if he may not
retain what he collects; unless the collector enjoys collection for
its own sake, ARPA furnishes little incentive to discover and
gather non-”archaeological resources.” But it would not be absurd
to conclude that Congress dispensed with the cumbersome process of
requiring permits for gathering non-”archaeological resources,”
even though it refused to transfer ownership of these less ancient
artifacts.
Further, the ARPA is concerned with protecting the
integrity of archaeological sites, presumably even moreso if they
are located in national forests. See, e.g., 16 U.S.C. §
470cc(b)(1)-(b)(2) (requiring that those who apply for a permit to
excavate archaeological resources be “qualified to carry out the
permitted activity.”); 36 C.F.R. § 296.8(a)(1); 1979 U.S.C.C.A.N.
1709, 1712 (recognizing the importance of protecting the unaltered
integrity of archaeological sites). The record suggests that
several hundred shovel holes found at the Aldridge site were
5
attributed to Shivers’s excavation activities.1 Considering the
resulting landscape alteration, Congress’s intent to regulate
digging or excavating on public archaeological sites is easy to
understand, while Shivers’s contrary position in favor of
encouraging unregulated amateur collection is virtually
incomprehensible.
Finally, the “arrowhead exception” to the ARPA discussed
by Shivers is inapposite and irrelevant. This exception is not
intended to encourage removal of arrowheads from public lands, but
rather to exempt such removal from the civil and criminal penalty
provisions of the ARPA. See 16 U.S.C. § 470ff(a)(3); 36 C.F.R. §
296.3(a)(3)(iii). Unlike the tokens excavated by Shivers, the
arrowhead exception is limited to those found on the surface of
public lands. See 16 U.S.C. § 470ff(a)(3) (“[n]o penalty shall be
assessed . . . for the removal of arrowheads located on the surface
of the ground.”). Also, the ARPA expressly provides that the
removal of arrowheads can be penalized under other regulations or
statutes. See, e.g., 49 Fed. Reg. 1016, 1018 (“regulations under
other authority which penalize [the removal of surface arrowheads]
remain effective.”) No inferences or implications helpful to
Shivers are found in these provisions.
Because the ARPA does not vest Shivers with an ownership
interest in the tokens, we need not discuss the Forest Service
1
These figures are taken from a report relied upon by the district
court and prepared by an Assistant Forest Archaeologist for the United States
Forest Service. This report also concludes that many of the holes attributed to
Shivers were not backfilled after excavation. Shivers does not challenge the
accuracy or conclusions of the report.
6
regulations, relied upon by the government, which go beyond ARPA
and attempt to define as “archaeological resources,” prohibited
from excavation, artifacts that are at least 50 years old. See 36
C.F.R. §§ 261.2, 261.9(g). The asserted conflict between the
Forest Service regulations and the ARPA does not need to be
resolved in this case.
C. Ownership and the Federal Common Law of Finds
The district court concluded not only that the ARPA did
not convey to Shivers an ownership interest in the Aldridge tokens,
but also that in the absence of express or statutory title
transfer, the federal common law of finds dictates that the United
States, not Shivers, owns the tokens.
The federal common law of finds, including certain
critical exceptions, is pertinent to this case. As the Eleventh
Circuit explained,
[t]he common law of finds generally assigns
ownership of the abandoned property without
regard to where the property is found. Two
exceptions to the rule are recognized: First,
when the abandoned property is embedded in the
soil, it belongs to the owner of the soil;
Second, when the owner of the land where the
property is found (whether on or embedded in
the soil) has constructive possession of the
property such that the property is not ‘lost,’
it belongs to the owner of the land.
Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d
1511, 1514 (11th Cir. 1985) (emphasis added). In Klein, a vessel
submerged beneath the waters of Biscayne National Park, Florida,
had been rediscovered and salvaged by a private diver. Holding
that the wreck was property of the government, not the diver, the
7
court emphasized that the “ship is buried in the soil. The soil
belongs to the United States as part of its national park system .
. . . When the United States acquired title to the land from
Florida in 1973, it also acquired title to the shipwrecks embedded
in that soil . . . . Thus the United States has never legally lost
the subject shipwreck and, as the owner of the land on and/or water
in which the shipwreck is located, it owns the shipwreck.” Id. at
1514 (emphasis added). Similarly, the Aldridge tokens excavated by
Shivers were buried in the soil of the Angelina National Forest.
As in Klein, this soil belongs to the United States, and with it
the embedded tokens under the first exception to the federal common
law of finds discussed in Klein.2
Shivers does not challenge this interpretation of the
federal common law of finds. Indeed, his only retort is that the
common law of finds is inapplicable because Congress expressly
provided in § 470kk(b) of the ARPA that private collectors enjoy
ownership of the non-archaeological resources that they discover on
public lands. As already discussed, this contention is
indefensible. The district court correctly held that the United
States owns the tokens that Shivers discovered.
2
Analyzing the ARPA, Judge Posner has also explained that “there is
no right to go upon another person’s land, without his permission, to look for
valuable objects buried in the land and take them if you find them.” United
States v. Gerber, 999 F.2d 1112, 1114-15 (7th Cir. 1993), cert. denied, ___ U.S.
___, 114 S. Ct. 878 (1994).
8
CONCLUSION
For the foregoing reasons, the judgment of the district
court denying Shivers’s 41(e) motion for the return of the Aldridge
tokens is AFFIRMED.
9