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Backyard archaeology apparently illegal in Oregon - Life is strange...

Nov. 25th, 2007

12:24 pm - Backyard archaeology apparently illegal in Oregon

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Hi!

I just read this article, in which we find that digging in your own backyard (i.e. your personally-owned property) for buried artifacts is illegal under Oregon law. On the face of it, this seems silly to me. You don't need a government permit to play with motorized landscaping machines on your land, why should you need a government permit to dig for ... whatever ... in your back yard?

But then I thought a bit about the established case law that allows the sale of mineral exploration rights, or hunting rights, or water rights related to a piece of land, unrelated to actual ownership of the land, and it starts to make sense. That set of precedent, combined with the body of law that deals with easements, rights-of-way, eminent domain, public good, and existing laws regarding historical artifacts, not to mention pollution control, means that there is legal basis for the sort of claim that the state of Oregon is making here.

But to me, it ends up being in something like the same category as an unfunded mandate. (Both Cspan and WikiPedia have decent definitions of the term.) This particular piece of administrative law says, in essence: you can't dig for treasure in your backyard if that treasure might have historical significance. At least, you can't do it unless you have a government permit, and a trained and licensed archaeologist on-hand to supervise the dig. But Oregon will not pay for, nor recommend, the archaeologist. Nor, according to my understanding of the law, does the property owner have any control of the process or timing of the dig, once started. This means that the property owner may end up with people not under his control, on his property, creating liability and also charging him significant amounts of money, for an indefinite period of time.

This sounds like a law that when put in place was intended to prevent wholesale destruction of native American archaeological sites. And the law and/or interpretation of the law has changed over time to present this monstrous burden to curious property owners. Oregon is not New Hampshire, whose state motto is "live free or die," but since it used to be full of loggers and miners, and still has quite a surfeit of people that believe in leaving their neighbors business alone, that this sort of law is in place is really quite amazing.

What do you think? What will come of it? Will/can it stand up if challenged?

Cheers! generalist

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