Case 24: Site Unseen

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A western archaeologist, who operates a consulting firm, wrote:

"As you are probably aware, much of the work performed in my region is a result of energy exploration and other activities which take place on federally administered lands. Many of the jobs my firm performs are limited only to the portions of the projects on lands under federal administration. Most ranchers and others in this region have never quite accepted or approved the vast amounts of land retained under federal ownership and administration. A certain distrust and even animosity is felt toward the federal system; on occasion, this is directed at the archaeological consultant working on federal projects.

"Several years ago we were conducting a cultural resource inventory (survey) of a proposed geophysical exploration project. At one point we had to cross private land to reach the project area. Since this was private land, the client was not required to have the project area examined for the presence of cultural resources; we were instructed not to do so, and that we would not be compensated for any time or expense in working off federal lands.

"While driving to the portion of the project on federal lands, we discovered that a large site with both historic and prehistoric components was on the private land within the project area. We decided to record this `off project' site at our own time and expense. It seemed the proper thing to do, given the fact that the area would receive some adverse impact from the proposed action. Since it was on private land, however, there was no federal say on the matter.

"Upon completion of the entire project, we contacted the private landowner, to learn something about the historic component and structures we had observed, so that the site forms would be as complete as possible. After we explained why we wanted the information, and told him how he would be helping to preserve data about early homesteading and ranching activities in the area, he become extremely uncooperative. He said it was his land and that the #$%^&*^# federal and state agencies had no business knowing what sort of sites were on his land. He was also concerned that knowledge of the sites by federal and state agencies might impede future projects, for which he receives royalty and damage payments. To him, the site represented a threat to the future development and exploration of the natural resources on his land.

"Our dilemma was what to do with the information we had collected about the site. The rancher had specifically stated that he did not want this site form turned in to any federal or state authorities. We had already collected the information on a site, however, which, while probably not significant, would be adversely affected by a project. (Note that we were not violating his wishes when we originally recorded the site; we were unaware that he did not want us to record the site, and we had permission to cross his land to reach the federal portions of the project.) We wanted to honor the wishes of the private landowner, who technically owns the site; yet we felt an ethical and professional responsibility to report the presence of this cultural resource to the appropriate agency.

"After much agonizing, we finally submitted the site form to the Bureau of Land Management, separate from our project report, and with the explicit understanding that the information would not be disclosed to anyone outside that agency. We hoped that this would preserve the data and facilitate future management decisions on the surrounding federal lands. We felt more than a little guilt in doing this, but it was a matter of finding the lesser of what seemed to be two evils.

"I have always wondered if we did the proper thing, and would welcome some feedback on this issue.

Comment

Keith W. Kintigh, University of California-Santa Barbara:

There are many reasons that landowners might have for not wishing to have sites on their land recorded in federal or state files. Their wishes might be motivated by a desire to protect the sites (and landowners are generally better protectors of sites they own than federal or state agencies are of sites on public lands). The landowners might fear that having an unusual or interesting site in the records of a state or federal agency might generate the additional nuisance of archaeologists coming around to bother them for permission to visit the site, or of some agency coming to ask for a report on the site's condition. On the other hand, the intent might be to squeak around the federal compliance process, counting on a lack of diligence by the relevant agency in determining whether any cultural resources would be affected by some future development.

I would be sympathetic to the first motive, and in large measure to the second, and would not report the site. The third case is more troublesome. If, under the future development, the site would be subject to federal or state protection, the archaeologist may essentially abet the landowner if the site is not reported. On the other hand, in that case (at least under federal law as I understand it), it would be the responsibility of the agency funding or licensing the development to determine if there are any sites that would be affected. While one hates to contribute, even indirectly to the destruction of a site, some of the suspicion of and resentment of federal and state agencies by ranchers is certainly warranted.

If the site is reported, I would have to wonder what it means to have the site report kept out of the public record, what the legal standing of that assurance is, and more importantly, what the long-term access to the records would be in practice. Even given the assurance of the agency, I'd guess that it is not unlikely that the archaeologist's failure to comply with the landowner's wishes will become known to the landowner. Even though no promise was made, this realization will not enhance the owner's view of archaeology. If the owner considered the site enough of a nuisance (as many ranchers do), he or she would be legally entitled to destroy the site or have it professionally looted so long as it were not done with public funds. However, in this case, having reported the site there would be at least some record of it.

On the balance, I'd say that there are circumstances in which a landowner's request to withhold site information should be honored. Given that, if distinctions are to be made they have to be based on the motives of the owner and the tradeoff between the marginal benefits to the profession of reporting the site and the difficulty of evaluating risks of doing so. My own inclination would be to honor most landowners' wishes unless it were clear that the landowner was likely to destroy the site in any event, in which case we should at least have some record.

Comment

Ruthann Knudson, Woodward-Clyde Consultants, Walnut Creek, California:

The issue of who owns an archaeological resource, with its included information value, is critical today as archaeologists confront the public nature of those resources in the context of the U.S. Constitution's prioritization of private property rights (see Knudson 1986:395-400 in Meltzer, Fowler, and Sabloff, eds., American Archaeology Past and Future, Washington, D.C.: Smithsonian Institution Press). Within this issue the concept of ownership of the resource information is usually not highlighted, and is the key to the western archaeologist's present dilemma. As introductory anthropology students we learn that northwest coast Indian value systems include the concept that songs or other kinds of information are private property, and we know about U.S. copyright and patent laws, but we are not accustomed to translating those concepts into everyday practice.

As I have discussed elsewhere (ibid), the policy statements of American federal law (e.g., National Historic Preservation Act, National Environmental Policy Act, Archeological Resources Protection Act) identify American's prehistoric and historic properties as part of the public wealth. That is the basis for developing an ethic of archaeological practice, and is implicit within the statement of ethics of the Society for American Archaeology, the American Anthropological Association, and the Society of Professional Archaeologists. In marked conflict with this policy is the Fifth Amendment to the U.S. Constitution, which states "nor shall private property be taken for public use without compensation." There is no U.S. case law that resolves this issue.

I believe it is my ethical responsibility as an archaeological practitioner to understand both these positions, try to comply with both insofar as is appropriate, and accept the American Constitutional priority of private ownership if a conflict cannot be resolved. The key factors in my response to this query are:

1. A contract was accepted by the archaeologist, and I presume that the contract provided that the archaeologist would work on the instructions of the client. The archaeologist was instructed, presumably by the client, not to look for cultural resources on private lands. The private lands subject to this instruction were presumably either within portions of a linear project area that also crossed public lands (use of which required a federal right-of-way grant), or were nonproject area lands over which trespass was required to reach the public portions of the project area. In any event, a contract was accepted, instructions were agreed upon (I presume, since it appears the client paid for the consultant's services), and land was trespassed with landowner's permission at least for such trespass. I would bet that the permission agreement did not specifically authorize any other kind of activity (e.g., archaeological recordation).

2. The archaeologist saw a prehistoric/historic resource on private land, and recorded it without prior landowner permission, and in violation of an agreed-upon contract.

3. The archaeologist contacted the landowner to get information about the historic component at the site, not to ask permission to record; at that time the landowner "specifically stated that he did not want this site form tuned in to any federal or state authorities."

4. The archaeologist subsequently submitted the site form to a federal agency, "with the explicit understanding that the information would not be disclosed to anyone outside that agency."

While I appreciate the conflicts the archaeologist is trying to resolve, I believe that the overall behavior was unethical on several points. First, the archaeologist accepted, then violated, a contractual relationship while accepting compensation for contractual fulfillment. Second, the archaeologist did not request authorization from the private landowner before recording the site, while (through the client's right-of-way agreement) accepting permission to trespass on the private land. Third, the archaeologist directly opposed the private landowner's requirement that the site's location or characteristics not be made known to any federal or state agency.

I do not believe that science can ethically be practiced in isolation from the sociopolitical context of the studied resource. The prevailing American sociopolitical value system is stated in the U.S. Constitution.