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.