Legislature(2021 - 2022)BUTROVICH 205
04/11/2022 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB207 | |
| HB157 | |
| SB229 | |
| SB39 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 207 | TELECONFERENCED | |
| += | SB 229 | TELECONFERENCED | |
| += | SB 39 | TELECONFERENCED | |
| += | HB 157 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 229-STATE HISTORICAL ARTIFACTS; CRIMES
1:55:40 PM
CHAIR HOLLAND reconvened the meeting and announced the
consideration of SENATE BILL NO. 229 "An Act relating to
misconduct involving confidential information; relating to
artifacts of the state; and relating to penalties regarding
artifacts or historic, prehistoric, or archeological resources
of the state."
CHAIR HOLLAND noted that this was the third hearing and there
was a committee substitute (CS) for the committee to consider.
1:56:03 PM
SENATOR SHOWER moved to adopt the CS for SB 229, work order 32-
GS2541\G, as the working document.
1:56:18 PM
CHAIR HOLLAND objected for discussion purposes.
1:56:43 PM
DAWSON MANN, Staff, Senator Robert Myers, Alaska State
Legislature, Juneau, Alaska, read the summary of changes from
Version I to Version G of SB 229 on behalf of the committee.
1:56:56 PM
SUMMARY OF CHANGES
(VERSION I TO VERSION G)
Change 1: Sections 1, 3, and 6 of version I were
deleted
Change 2: The classifications were changes so that
"intentional" violations of AS 41.35.200(a)
or (b) are class C felonies
Change 3: The definition of "artifact" was deleted
1:57:31 PM
CHAIR HOLLAND removed his objection; he found no further
objection, and Version G was adopted.
1:57:54 PM
SENATOR KIEHL moved to adopt Amendment 1, work order 32-
GS2541\G.1.
32-GS2541\G.1
Bullard
4/11/22
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 229(JUD), Draft Version "G"
Page 1, line 11:
Delete "is convicted of violating a provision of"
Insert "knowingly violates [IS CONVICTED OF
VIOLATING A PROVISION OF]"
Page 1, line 14, following the second occurrence of
"(b)":
Insert ", and the value of the affected historic,
prehistoric, or archeological resource is equal to or
greater than $2,500,"
Page 2, line 2:
Delete all material and insert:
"(c) If it is necessary in prosecuting a
violation of AS 41.35.010 - 41.35.240 to determine the
value of a historic, prehistoric, or archaeological
resource, the appraised value of the historic,
prehistoric, or archeological resource at the time and
place of the crime is the value. In determining the
degree or classification of a crime under this
section, amounts involved in criminal acts committed
under one course of conduct, whether from the same
person or several persons, shall be aggregated.
(d) In this section, "intentionally" and
"knowingly" have the meanings given in
AS 11.81.900(a)."
Page 2, line 6:
Delete "AS 41.35.210(b) and (c)"
Insert "AS 41.35.210(b) - (d)"
1:58:03 PM
CHAIR HOLLAND objected for discussion purposes.
1:58:07 PM
SENATOR KIEHL explained that Amendment 1 would place a threshold
value on the felony and make removing any artifact a potential
felony. He stated the intent was to capture only those taking
high-value artifacts. Amendment 1 would hold an offender to a
"knowing" mental state, subject to a misdemeanor, so a person
must intentionally remove or sell a historic archeological
resource valued at $2,500 or more for the penalty to rise to a
felony.
1:59:08 PM
CHAIR HOLLAND asked for the reason to set the value of an
archeological resource or artifact at $2,500.
1:59:19 PM
SENATOR KIEHL answered that he picked a value that seemed
appropriate. He was unsure whether the threshold was set high
enough to avoid capturing a hiker who picked up railroad spikes
or tiles without realizing their value. He envisioned that the
person would face criminal penalties but not felony penalties.
However, someone who takes a basket from an archeological dig
site thousands of years old should face a more severe penalty.
2:00:21 PM
SENATOR SHOWER stated that the genesis of the bill was to
address the theft of state assets, including old WWII artifacts
that could be worth hundreds of thousands of dollars. He offered
his view that even a small widget could be worth $5,000 to
$10,000, and a WWII jeep's value could range from $50,000 to
$100,000 for collectors, depending on the jeep's condition. He
agreed that the intent was not to cast the net so wide that
someone who took a little piece of something they found while
hiking would face felony charges. Still, it was essential to set
a felony penalty for those intentionally coming to the state to
extract entire assets with historical value. He asked whether
the Department of Law would suggest a different amount, such as
$15,000. He further asked whether the department was concerned
about any equal protection or other issues.
2:03:04 PM
KACI SCHROEDER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, Juneau, Alaska,
stated that the threshold was a policy decision for the
legislature. She deferred to the Department of Natural Resources
(DNR) for any comments.
SENATOR SHOWER noted that his staff previously worked as a DNR
manager, so Mr. Ogan may have some insights.
2:03:41 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, Alaska, stated that when he previously
served as a Department of Natural Resources (DNR) manager, his
staff worked with the Office of History Archeology on navigable
water issues. During that time, they found an old mining boat
artifact with significant historical value to the state. A naval
architect calculated the load and draft for the boat, which
helped resolve issues related to navigable waters. Thus, the
definition should include significant historical value to the
state rather than just setting a dollar value for the artifact.
2:07:30 PM
CHAIR HOLLAND pointed out that he was comfortable with a
threshold of $2,500.
2:08:07 PM
SENATOR HUGHES acknowledged that although someone couldn't sell
the dilapidated mining boat on eBay, it had significant
historical value to DNR. She asked how DNR would determine the
monetary value of artifacts.
2:09:20 PM
JUDY BITTNER, Chief/State Historic Preservation Officer, Office
of History & Archeology Alaska Historical Commission, Division
of Parks and Outdoor Recreation, Department of Natural
Resources, Anchorage, Alaska, responded that archeologists and
historians often do not put a market value on artifacts due to
the intrinsic value or information that these artifacts yield.
Instead, the site is essential in understanding the
contribution. For example, Mr. Ogan mentioned finding a boat
next to a river, which provides an association. Some states
consider the disturbance of a site and base the value on the
cost to restore the site and on the amount of information lost
rather than to determine the market value of the individual
artifacts removed. For example, the loss of the artifact might
mean that a significant amount of information archeologists
could gain from that site was lost. She explained that artifacts
in museums are valued for insurance purposes, but that valuation
is not currently done by the Office of History and Archeology.
However, if the bill had a provision to put a value on
artifacts, DNR would have to figure out a way to do so.
2:12:01 PM
CHAIR HOLLAND asked whether the Office of History and Archeology
could examine an artifact in the field and make an initial
determination if the value was greater or less than $2,500.
MS. BITTNER maintained that archeologists in the field do not
look at the monetary value of an artifact but consider the
information it provides to understand the site. For example,
archeologists might discover a small set of microblades from a
13,000-year-old site and glean information about the technology
used and how people hunted rather than seek to determine the
market value. She said she was unaware of any archeologist who
places a monetary value on artifacts or collections from a site.
2:13:28 PM
SENATOR SHOWER stated that some artifacts might only have
intrinsic value, such as the crumbling boat DNR found. However,
the committee also considered abandoned equipment found at a
crash or other site. He recalled that the threshold for a felony
was $750 for property crimes but noted that even small pieces of
equipment might be valued at $2,500. He said he could not
support Amendment 1 due to the low threshold for the value of
the historic, prehistoric, or archeological resource. He pointed
out that some people come to Alaska and remove whole assets,
such as a WWII jeep, truck, or plane valued above $15,000.
2:15:48 PM
SENATOR KIEHL said while he deeply values historical records and
artifacts, it is challenging to differentiate and decide which
objects have more historical value than others. Amendment 1 uses
current law, which states that if a person knowingly takes an
archeological resource of the state, it constitutes a class A
misdemeanor. Thus, it would establish a criminal penalty for
taking the microblade or flint knife.
SENATOR KIEHL stated that the old Treadwell Mine in Juneau had a
natatorium constructed with white hexagonal tiles. After the
mine cave-in in 1917, the tiles were strewn along the beach and
have continued to be popular items for people to pick up. He
surmised the committee would not want that collecting to be a
felony. Still, these tiles likely would be considered a
historical resource of the state. Amendment 1 would create a
higher threshold than the crime of theft because it is difficult
for a layperson to assess the value of a historic resource.
Amendment 1 speaks about an appraised value, often used to value
museum objects or for wills or estates. Thus, someone would need
to testify as an expert witness to identify an artifact as a
valuable, historical thing.
2:18:45 PM
SENATOR KIEHL expressed his willingness to raise the threshold
value of an item to avoid catching the person who inadvertently
picks up an artifact while beachcombing. He further noted that
Amendment 1 requires an intentional mental standard.
2:19:08 PM
SENATOR MYERS indicated he had questions about the mental states
in Amendment 1. He posed a scenario where someone goes to an
archeological site and finds something they believe could be
sold on eBay for $5,000 or $10,000. He asked whether it would
fall under the felony statute.
2:20:01 PM
MS. SCHROEDER responded that the person would need to have a
conscious objective when taking an artifact. She agreed the
scenario described by Senator Myers would fall under the
intentional standard.
2:20:16 PM
SENATOR MYERS posed another scenario where someone goes to an
archeological site, finds something, and brings it home as a
keepsake. The person may or may not know its value but likes the
object. He asked whether it would fall under the felony
provision, the misdemeanor, or something else.
MS. SCHROEDER stated that property crimes don't require a mental
state related to the monetary threshold, but only for the mental
state necessary for the act.
2:21:18 PM
SENATOR MYERS asked which mental state would apply to someone
who finds an artifact and may or may not know the monetary value
but takes the object home.
MS. SCHROEDER answered that the knowing mental state means the
person was aware of a substantial probability of its existence,
so the person in his scenario would likely meet the knowing
standard unless they did not believe it was an artifact, but
they might also meet the intentional state.
2:22:05 PM
SENATOR MYERS related another scenario where someone goes on a
hike across state land that was previously a mining claim, finds
a gold pan, takes it home, but does not think about its
historical significance.
2:22:39 PM
MS. SCHROEDER answered that would not constitute a crime.
2:22:49 PM
SENATOR SHOWER asked how often these crimes happen. He
envisioned Amendment 1 would apply if someone brought in a crew
and removed a significant artifact from the state via a barge.
He viewed that action as intentionally taking an artifact, which
seemed different than someone randomly finding an artifact and
keeping it. He asked whether low-level offenses were a problem
or if the intent of the bill and Amendment 1 was to address
people taking significant, historical artifacts from the state.
MS. SCHROEDER was unsure how often this occurs. She deferred to
DNR to respond. She noted that in the entire time that the
Department of Law had tracked these cases, the department
received only two referrals. She reviewed those cases and found
that each one met the intentional standard.
2:24:20 PM
CHAIR HOLLAND asked how often people are taking artifacts from
state lands.
2:24:46 PM
MS. BITTNER responded that it happens quite often in remote
areas where it would be difficult to apprehend them. The
department had found evidence of sites where artifacts were
being dug up and removed. DNR previously conducted joint
operations with the federal agencies in instances where people
posted videos on social media with them using metal detectors,
digging up artifacts, and marketing them. However, it is
difficult to prosecute those cases.
MS. BITTNER stated that the intent was to identify offenders
with a repetitive pattern of digging up sites. She acknowledged
that there were significant operations by those collecting WWII
aircraft parts. During her tenure, the office sometimes had
intervened, retrieved the artifacts but had not prosecuted the
looters. She reiterated that it was difficult to enforce these
laws due to the nature and remoteness of many historical sites.
However, she offered her believe that it was important for the
legislature to identify unlawful acts and create penalties to
address theft at historical sites for those removing artifacts.
CHAIR HOLLAND maintained his support for using a threshold of
$2,500. He offered his view that it's easy to view rusted-out
items and equate them as low-value artifacts but acknowledged
that probably only an appraiser could determine an item's value
was $15,000.
2:27:59 PM
SENATOR HUGHES wondered if Amendment 1 would trigger a fiscal
note since an official appraisal would need to determine the
value of the artifacts. She asked whether it would create any
legal issues because the archeologist would not provide an
appraisal but only estimate the intrinsic value.
MS. BITTNER responded that she would research whether the state
could find appraisers at the state museum or the University of
Alaska who could provide the necessary expertise. She said she
was unsure whether it would trigger a fiscal note. However,
DNR's federal partners enforce federal historic preservation
laws, so they may have appraisers.
2:30:10 PM
MS. SCHROEDER pointed out that Amendment 1 related to the
appraised value of the historic, prehistoric, or archeological
resource, so guestimates would not suffice to prove the elements
of the offense.
2:30:31 PM
SENATOR KIEHL related his understanding that an agency
overseeing the resources would refer criminal behavior but not
engage in appraising the item's value. He stated that the
prosecutor would build out the record to prove the elements of
the case. He asked whether he had interpreted the process
correctly.
MS. SCHROEDER responded that an officer or investigator would
conduct an investigation. One element of the case would be the
valuation of the artifacts, and the officer would subsequently
send the case to the prosecutors to review. She surmised that
prosecutors would likely summon the appraiser as a witness
during the trial.
SENATOR SHOWER wondered whether the committee should consider a
conceptual amendment. He offered his view that a higher limit
would help. In his experience visiting aviation crash sites,
nothing taken was less than $2,500, and some artifacts were
worth vastly more. He cautioned members that $2,500 seemed very
low.
SENATOR HUGHES commented that the state would pay for an
appraisal, whether the Department of Natural Resources or the
Department of Law provided it.
MS. SCHROEDER agreed.
2:33:20 PM
SENATOR SHOWER moved to adopt Conceptual Amendment 1 to
Amendment 1
CONCEPTUAL AMENDMENT 1 TO AMENDMENT 1
Line 7 of Amendment 1 would read, "... equal to or
greater than $10,000 or of significant historical
value to the state."
SENATOR SHOWER acknowledged that an appraisal would likely be
necessary, but the higher threshold would focus on items of
significant value.
2:34:46 PM
CHAIR HOLLAND objected for discussion purposes.
CHAIR HOLLAND restated that Conceptual Amendment 1 to Amendment
1 would read, "... equal to or greater than $10,000 or of
significant historical value to the state."
2:35:12 PM
ED KING, Staff, Senator Roger Holland, Alaska State Legislature,
Juneau, Alaska, pointed out that Conceptual Amendment 1 to
Amendment 1 should be read in conjunction with AS 41.35.230(2),
which read:
(2) "historic, prehistoric, and archeological
resources" includes deposits, structures, ruins,
sites, buildings, graves, artifacts, fossils, or other
objects of antiquity which provide information
pertaining to the historical or prehistorical culture
of people in the state as well as to the natural
history of the state.
MR. KING suggested Ms. Schroeder discuss the interplay between
the proposed amendment and current law.
2:35:51 PM
MS. SCHROEDER pointed out that raising the threshold to $10,000
would create the same issues that were previously discussed. She
deferred to DNR as to whether the department could articulate
significant historical value to the state, which would be an
element of the offense that the state would need to prove.
2:36:25 PM
SENATOR SHOWER said he started the process to limit it to WWII
artifacts, but the bill morphed and expanded. He indicated his
willingness to return to the original concept for the bill,
which was to protect WWII assets in Alaska. It would likely be
easy to identify them as WWII assets since they were
manufactured from 1938 to 1945. Other artifacts have intrinsic
value, so it could be more challenging to place a monetary value
on them.
SENATOR KIEHL offered his view that the heart of the bill was
good because of its breadth. He emphasized that the state does
not want 9,000-year-old Ravenstail weavings from Karst caves on
Prince of Wales Island collected and sold. However, he was
unsure how a prosecutor would prove how something had more
significant historical value to the state than the definition
Mr. King read. He suggested that if the language reads "or," the
state could still prove the dollar value. He said he was okay
with Conceptual Amendment 1 to Amendment 1.
2:38:29 PM
SENATOR HUGHES stated her preference to include all artifacts
rather than limit it to WWII crash sites; however, Conceptual
Amendment 1 offered two options.
2:38:58 PM
CHAIR HOLLAND asked whether phrasing $10,000 or significant
historical value raised any issues.
MS. SCHROEDER responded that she is not an expert in artifacts,
so she was unsure she could articulate what constitutes
significant historical value, but someone at DNR may be able to
do so.
2:39:34 PM
CHAIR HOLLAND stated his concern was more focused on the legal
aspects but asked Ms. Bittner for her perspective.
MS. BITTNER responded that DNR has the methodology for
determining and evaluating items of historical significance to
the state. She explained that the department established the
criteria and process to evaluate historical items, including
determining whether the object had historical significance.
2:40:28 PM
CHAIR HOLLAND removed his objection; he found no further
objection, and Conceptual Amendment 1 to Amendment 1 was
adopted.
2:40:51 PM
CHAIR HOLLAND stated that Amendment 1, as amended, was before
the committee.
CHAIR HOLLAND removed his objection; he found no further
objection, and Amendment 1, as amended, was adopted.
2:41:56 PM
SENATOR SHOWER pointed out that there was a companion bill to SB
229.
2:42:15 PM
CHAIR HOLLAND asked whether "artifacts" is included in the
definition of "archeological resources" in current law.
MR. KING explained that "artifact" appears in the definition.
Defining "artifact" would only apply within the definition. He
stated that it is the definition found in the dictionary, so it
was assumed there was no need for that additional language.
2:43:23 PM
SENATOR SHOWER moved to report the CS for SB 229, work order 32-
GS2541\G, as amended, from committee with individual
recommendations and attached fiscal note(s).
CHAIR HOLLAND found no objection, and CSSB 229(JUD) was reported
from the Senate Judiciary Standing Committee.
CHAIR HOLLAND stated that the committee authorizes Legislative
Legal Services to make conforming and technical changes to
accomplish the committee's intentions.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 229 version G.pdf |
SJUD 4/11/2022 1:30:00 PM |
SB 229 |
| SB 229 Summary of Changes (version G).pdf |
SJUD 4/11/2022 1:30:00 PM |
SB 229 |
| SB 229 Amendment G.1.pdf |
SJUD 4/11/2022 1:30:00 PM |
SB 229 |
| HB 157 Amendment #4 (G.4).pdf |
SJUD 4/11/2022 1:30:00 PM |
HB 157 |