SB 229-STATE HISTORICAL ARTIFACTS; CRIMES  4:24:38 PM CHAIR REVAK 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." [CSSB 229(JUD) was before the committee.] 4:25:40 PM RICKY GEASE, Director, Division of Parks and Outdoor Recreation, Department of Natural Resources, Anchorage, Alaska, stated that the Office of History & Archaeology, Division of Parks and Outdoor Recreation are responsible for administering the programs in the Alaska Historic Preservation Act. He related that SB 229, also known as the artifacts bill would amend the Alaska Historic Preservation Act and the criminal code to provide protections for historic artifacts through increased penalties for violations of the act. He said a class C felony was added as a penalty for a person who, without a permit, intentionally excavates artifacts from a site with the intent to sell, but other offenses remain a class A misdemeanor. The bill amends the civil penalty section by adding a provision for restitution for damaged and vandalized sites. The department's goal is to protect Alaska's heritage resources. He offered his view that the bill would act as a deterrent for unauthorized actions. 4:27:20 PM JUDY BITTNER, Chief, History & Archaeology/State Historic Preservation Officer, Office of History & Archaeology, Alaska Historical Commission, Division of Parks and Outdoor Recreation, Department of Natural Resources, Anchorage, Alaska, presented the committee substitute (CS) for SB 229. She paraphrased remarks, which read: [Original punctuation provided.] The committee substitute is a complete re-do of the bill. A primary intent of the bill is to enhance protections for historic and archaeological sites through increased criminal penalties for violations of the Alaska Historic Preservation Act. Earlier versions of the bill relied on market value of artifacts to distinguish between a felony and a misdemeanor. Instead of market value of looted artifacts, this bill focuses on violations of the Alaska Historic Preservation Act and the level of loss of scientific information caused by violations of the Act through intentional actions and the intent to sell artifacts. This orientation of the bill fits more closely with the policy of the Alaska Historic Preservation Act. The first sentence of the Alaska Historic Preservation Act reads: It is the policy of the state to preserve and protect the historic, prehistoric, and archaeological resources of Alaska from loss, desecration and destruction so the scientific, historic and cultural heritage embodied in these resources may pass undiminished to future generations. 4:29:08 PM Unauthorized excavation and damage to historic or archaeological resources destroys the context of the scientific information contained within that unique site. Most of the information archaeologists recover from a site is in the stratigraphic position of the artifacts and features. Also, the position of features and artifacts to one another is critical to understanding a site. If a hearth with charcoal is found within a site, the charcoal can be dated. Artifacts associated with the hearth, or in a layer above or below the hearth can help date and define distinct cultural eras. Unauthorized excavation in search of artifacts would dig right through a hearth feature. That information is lost forever, once it is disturbed and out of context. 4:30:09 PM In the committee substitute a distinction is made at the penalty level between site disturbance and the more casual surface collection of artifacts. Removal of artifacts from a site without a permit with no ground or site disturbance is a misdemeanor. Intentional excavation, damage, destruction, or injury to a site is a class C felony. Also, possessing artifacts in violation of the Act with the intent to sell is a class C felony. Also, in the committee substitute is a provision added to the civil penalties section that allows for restitution for damaged or vandalized sites. Remediation or restoration of a damaged site can take place by order of the court. 4:31:14 PM SENATOR STEVENS remarked about the numerous archeologists that have come to Alaska and acknowledged that Alaska's artifacts have ended up all around the world in strange places. He wondered how the department authorizes anthropologists to do their work without damage to the site. MS. BITTNER responded that the department authorizes archeologists to work by issuing a state cultural resources permit. The permit questions are research related, about the type of information that the scientist will gather, the extent of the excavation, and it would require a report. The person must meet professional qualification standards, which are done through the permitting process. 4:32:50 PM SENATOR STEVENS wondered whether excavated artifacts, such as Native masks, would belong to the state and if they could be removed and taken out of state or out of the country. MS. BITTNER answered that a portion of the permit contains a curation provision. Artifacts and materials removed from the state belong to the State of Alaska. The division requires that the artifacts be curated in a state repository. Thus, those artifacts would go to the museum at the University of Alaska Fairbanks or the Alaska State Museum in Juneau for long-term management. If someone wanted to borrow or obtain the artifacts on loan, they would work with the museum institution. 4:34:21 PM SENATOR STEVENS thanked her for her years of dedication to the state. 4:34:27 PM SENATOR KAWASAKI asked whether the permit for an archeology dig would be issued as an inclusive permit or for a specific object. MS. BITTNER answered that the division would typically issue the permit for a specific site. The artifacts are a portion of the site. She characterized the archeological site as a three- dimensional puzzle, and the artifacts are one aspect of it. The archeologist must have a purpose, such as studying subsistence practices. The permit requires the researcher to have a scientific purpose that must also benefit the state to be considered well-reasoned research. Suppose the office does not find that the applicant had an adequate reason to conduct the research, including benefits to the public. In that case, the department has the discretion to deny the permit for excavating a site. 4:36:40 PM SENATOR KAWASAKI related a scenario when he was a Boy Scout, where he and another scout canoed on the Chena River and his friend pulled a mastodon tusk from a shallow spot. He asked whether that was illegal. MS. BITTNER answered yes, that would be illegal. She advised that the Alaska Preservation Act requires a permit to collect fossils. She stated that any fossils, including mastodon tusks, belong to the state. She acknowledged that it is hard to police that activity, but the department would ask the finder to turn the fossil over to the state when it is reported. She stated that it would not be considered an intentional act but one that the person committed without knowing the Alaska Historic Preservation provisions. 4:38:16 PM SENATOR KAWASAKI commented that placer miners sometimes find fossils. He asked whether the miner would be covered under the self-reporting process. He wondered whether the miner would be required to pay for damage if the fossil was damaged. MS. BITTNER responded that the placer miner should set it aside and report it to DNR. SENATOR KAWASAKI asked if the current statute for criminal penalties has ever been exercised. MS. BITTNER answered that DNR had had some joint exercises with law enforcement. She recalled a recent one in Fairbanks, where some artifacts had been collected from state and federal land that was recovered. It does not happen often, but it does happen. 4:40:38 PM VICE CHAIR MICCICHE stated that the transmittal letter states, "Under the Alaska Historic Preservation Act currently, the word artifact is not defined. This bill defines artifact." He asked for the bill reference that defines artifact. MS. BITTNER answered that the committee substitute (CS) for SB 229, Version O does not have the definition for artifact. The definition of "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. 4:41:41 PM VICE CHAIR MICCICHE cautioned that the committee had not yet adopted a committee substitute (CS) for SB 229. VICE CHAIR MICCICHE solicited a motion. 4:42:02 PM SENATOR STEVENS moved to adopt the committee substitute (CS) for SB 229, work order 32-GS2541\O, as a working document. VICE CHAIR MICCICHE objected for discussion purposes. 4:42:39 PM At ease 4:42:55 PM VICE CHAIR MICCICHE reconvened the meeting and invited Ms. Bittner to give the explanation of changes. MS. BITTNER paraphrased the explanation of the changes from Version G to Version O which read: This bill increases penalties for certain offenses involving artifacts and adds additional civil sanctions for those who violate the Alaska Historic Preservation Act. Section 1 Section 1 amends the "Unlawful Acts" section to make it a criminal felony for anyone without a permit to intentionally harm or destroy a historic, prehistoric or archaeological resources. Section 2 Section 2 amends the "Unlawful Acts" section to make it a criminal felony for anyone to possess with the intent to sell, or offer to sell a historic, prehistoric, or archaeological resource acquired in violation of the Alaska Historic Preservation Act. Section 3 Section 3 adds four new subsections to the "Unlawful Acts" section. Subsection (e) and (f) makes it a criminal misdemeanor for anyone to knowingly possess or remove a historic, prehistoric, or archaeological resource taken in violation of the Alaska Historic Preservation Act. Subsections (g) affirms that the offenses under sections 1 and 2 are class C felonies. Subsection (h) defines "knowingly" and "intentionally" by referring to the definitions in the Alaska criminal statutes. 4:44:42 PM Section 4 Section 4 amends the "Criminal penalties" section to note that violations of the Alaska Historic Preservation Act not included in Sections 1 and 2 are misdemeanors. Section 5 Section 5 adds a new subsection that notes where the Alaska Historic Preservation Act statutes are silent on the mental state for a criminal offense, the mental state will be determined based on AS 11.81.610(b). 4:45:16 PM Section 6 Section 6 amends the "Civil penalties" section by adding a provision for restitution for damaged or vandalized sites. The court can order remediation or restoration of historic, prehistoric, and archaeological sites that have been excavated, damaged, defaced, injured or destroyed in violation of the Alaska Historic Preservation Act. Section 7 Section 7 adds a section to the uncodified law consistent with State law that the criminal offenses and penalties provided in this Act may be charged only after the Act's effective date. (Note: word "committee" should be "committed" Section 8 notes the Act's effective date is July 1, 2022. 4:46:16 PM SENATOR KIEHL commented that the committee substitute (CS), Version O, would significantly broaden the items and expand the felony provisions from Version W. The previous committee, the Senate Judiciary Committee, considered the penalty provisions. He asked for the justification for making it a penalty to sell any historical or natural artifact, regardless of its value. He acknowledged the importance of protecting valuable historic sites, Alaska Native relics, and a mastodon tusk. However, this would include railroad ties and old tiles. He wondered why the division made that change from Version W. 4:47:45 PM MS. BITTNER answered that the intent was an attempt to address the behavior of collecting and destroying the site. She stated that social media has identified that many people use metal detectors to locate and subsequently dig up artifacts and sell them. She noted that the two behaviors together destroy Alaska's resources. 4:48:39 PM VICE CHAIR MICCICHE stated that he needs to understand the bill better. He said Version O seemed to take a very heavy-handed approach. He expressed concerns that his 12-year-old daughter would be going to prison for a long time. He stated that it was not clear what the bill addresses. He offered his view that every Alaskan family has a little pile of things they have found. He acknowledged that vandalism was problematic. 4:49:50 PM SENATOR KAWASAKI agreed. He noted that the term "historic" was used in several sections of the bill, including the class C felony. He wondered what would be considered historic. For instance, numerous railroad spikes can be found at the old railway between the Kennecott Mine and Cordova. He asked whether that was considered historic. He wondered whether a person could be charged for possessing railroad spikes. 4:50:56 PM MS. BITTNER answered that the Alaska Historical Commission establishes the criteria for identifying historical sites and applies the criteria through an evaluation process. She noted that the Alaska statutes have a section that indicates that the state is entitled to all the historical artifacts on its land. MS. BITTNER stated that the division would use both in an evaluation process and determine the context. An isolated spike taken out of context is not significant. Still, it could be considered a substantial artifact if it is part of a more significant archeological or historic site, and people should leave it in place. She agreed that people might have their pile of artifacts, which is considered casual removal and is not the intent or purpose of this bill. SB 229 proposes better stewardship over Alaska's historic places and leaving artifacts alone. She emphasized that SB 229 addresses the systematic destruction, excavation, and vandalism of historic artifacts with the intent to sell, which DNR would like to deter. 4:53:34 PM SENATOR VON IMHOF wanted to ensure the department wasn't overboard. She said one's man's junk is another man's treasure. If a person somehow has the fortitude to travel from Kennecott to Cordova and picks up discarded railroad spikes or anything discarded for decades, they could be thanked for cleaning up the land. She expressed concern that someone who hikes the Chilkoot Trail and picks up a rusty old tin soup can could be prosecuted. She acknowledged the importance of preserving arrowheads or mastodon tusks. 4:54:56 PM VICE CHAIR MICCICHE asked why people could walk into a tourist shop in Juneau and purchase a mastodon tusk or items made from fossilized walrus ivory. He asked whether it was because those items were not found on state land. MS. BITTNER answered that it could be that it is not from state land. She deferred to the Department of Law to respond. 4:56:06 PM CHRISTOPHER ORMAN, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, Juneau, Alaska, responded that the Department of Law would review state and federal law regarding a mastodon tusk. MR. ORMAN said he could answer some of the questions that were raised earlier in the hearing. One of the scenarios raised when this bill was before the Senate Judiciary Committee was someone on Sandy Beach picking up something from the derelict Treadwell Mine, and suddenly the person possessed an artifact. The committee raised that question in a different context today when it was related that someone picked up a mastodon tusk when floating the Chena River. Under the current statute, any violation of the Alaska Heritage Act would result in a misdemeanor. The idea of this bill was to differentiate some of the conduct. MR. ORMAN stated that one big concern was removing artifacts intending to sell them. He highlighted that Judy Bittner, Office of History & Archaeology, would like to value these artifacts, so it makes sense to differentiate the conduct. Thus, if an individual intentionally destroys a site or intentionally collects an artifact with the intent to sell, it represents conduct the state wants to avoid. Although someone who picked up railroad spikes or some tiles might be violating the letter of the law and be subject to a misdemeanor, they would not likely be prosecuted. 4:58:53 PM MR. ORMAN stated that the bill added provisions to address more egregious behavior and serve as a general deterrent. He suggested Ms. Schroeder, Department of Law, who is present today, related that only two cases had been brought forward under the current statute. He offered his view that the Department of Law has significant discretion. Rather than yielding some crimes, the idea was to impose penalties to serve as a deterrent to the public, so people would not dig at a historical or archeological site without a permit. The bill might also help with egregious situations, with civil offenses under [AS 41.35.215] would allow for restoration or remediation of a site that had been improperly excavated. MR. ORMAN stated that it is possible to purchase a mastodon tusk, in some cases, because someone obtained a permit and, through federal or state law, could reach a point where it could be sold. 5:00:39 PM VICE CHAIR MICCICHE responded that it is helpful, but it does not diminish that a child or adult picking an old bolt from Sandy Beach could be charged with a misdemeanor, which he found absurd. He agreed that taking an item from a historic Native site is one thing but taking a bolt from Sandy Beach is another. He suggested that perhaps this bill should identify that it is not a misdemeanor to pick up a railroad spike or bolt. He said that wading into Cook Inlet and picking up a hollowed-out stone that may have once been an oil lamp is very different from prying a carving from an obvious archeological historic Native site. He offered his view that the department seems to be saying that the committee should ignore the absurdity part and focus on the potentially egregious behavior, which is hard to do. He was unsure if the line was that clear. 5:02:33 PM SENATOR STEVENS commented that this is a complex issue. He said he keeps thinking about the Native artifacts that are thousands of years old. He recalled the department differentiates the behavior based on the intent to sell. He offered his belief that there was nothing wrong with finding and collecting a fossil at Fossil Beach in Kodiak, but it would be a violation if the person were selling it. 5:03:13 PM MR. ORMAN answered that was correct. He stated that the mental state was essential to consider. It would be challenging to satisfy the mental state of knowingly for an individual who picks up something at Sandy Beach. However, the intent to sell or deface and excavate a site without a permit would constitute a felony. He offered his view that the conduct pursuant to the mental state is what legally avoids the potential for some of the absurd outcomes that members had expressed concern about. 5:04:55 PM At ease 5:05:17 PM VICE CHAIR MICCICHE reconvened the meeting and opened public testimony on SB 229; he found none, and closed public testimony. 5:06:31 PM VICE CHAIR MICCICHE withdrew his objection; he found no further objection, and the committee substitute (CS) for SB 229, Version O, was adopted as the working document. [VICE CHAIR MICCICHE held SB 229 in committee.]