United States District Court, D. Colorado
ORDER REGARDING DEFENDANT'S MOTION TO DISMISS ALL
CHARGES FOR ABSENCE OF FEDERAL JURISDICTION (ECF #132) TERMED
P. Gallagher United States Magistrate Judge
matter comes before the Court on Defendant's motion to
dismiss (ECF #132) and the Government's response (ECF
# 135). The Court has reviewed each of the
aforementioned documents and any attachments. The Court has
also considered the entire case file, the applicable law, and
is sufficiently advised in the premises. Oral argument is not
necessary to resolve this discrete issue. For the following
reasons, I DENY the motion.
moves the Court to dismiss this action for two reasons:
Defendant claims that the acts charged did not occur on
federal land and that the Court thus has no jurisdiction; and
Defendant claims that one of the offenses with which he is
charged, the alleged violation of the Archeological Resources
Protection Act (ARPA) 16 U.S.C. § 470ee(a), does not
apply for two sub-reasons:
a. The 100 year time frame in ARPA began on the date the
statute took effect and does not roll forward; and
b. The nature of the mining claim upon which the alleged
crime occurred is removed from ARPA jurisdiction.
Court must construe the motion liberally because Defendant is
not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not act as an advocate for pro se
litigants. See Hall, 935 F.2d at 1110.
requirement of occurrence on federal land:
Defendant is charged with one violation of 16 U.S.C. §
470ee(a) an element of which crime requires proof that the
crime occurred on either "public lands" or
"Indian lands." Id. This is an element
which must be established, to the satisfaction of the jury,
beyond a reasonable doubt. No further proof is required in
this pre-trial posture as this is an element which must be
proven at trial. Defendant is also charged with two counts of
violating 36 C.F.R. § 261.9. For purposes of conviction,
the Government must prove that the crime occurred on National
Forest System Land. See 36 C.F.R. § 261.1. As
with the first count, this is a factual issue for the jury,
not fodder for pre-trial dismissal.
first argues that ARPA is being incorrectly applied due to a
misconstruction of the 100 year requirement which states
"No item shall be treated as an archaeological resource
under regulations under this paragraph unless such item is at
least 100 years of age." 16 U.S.C. § 470bb(1).
took effect in 1979. See Pub.:. 96-95, § 3,
Oct. 31, 1979, 93 Stat. 721. Essentially, Defendant argues
that the 100 year mark for ARPA for all time is to be dates
back (to 1879) and remains fixed at that time. Thus, without
future legislation, no matter the length of our Republic,
items are only protected by ARPA if they pre-date 1879.
stated purpose of ARPA is "to secure, for the present
and future benefit of the American people, the protection of
archaeological resources and sites which are on public lands