Tuesday, May 28, 2013

Paleontological Resources Preservation Act Regulations Proposed

Administrative regulations to implement the Paleontological Resources Preservation Act (PRPA) were introduced last week.

PRPA was enacted into law in 2009. It is a federal statute that empowers public authorities to protect paleontological resources on federal lands, providing criminal and civil penalties for fossil theft and vandalism and requiring permits for collecting paleontological resources.

In a public notice dated May 23, 2013, the U.S. Department of Agriculture (USDA) explains "The rule would address the management, collection, and curation of paleontological resources from Federal lands including management using scientific principles and expertise, collecting of resources with and without a permit, curation in an approved repository, maintaining confidentiality of specific locality data, and authorizing penalties for illegal collecting, sale, damaging, or otherwise altering or defacing paleontological resources."

The proposed rule seeks to "clarify that science, rather than other values, will be the primary management tool for paleontological resources on Forest Service lands."

The regulations, if adopted, would require a permit for collecting paleontological resources from Forest Service administered lands.  But those in engaged in the "casual collecting of a rock, mineral, or fossil" would not require a permit.

Written public comments will be accepted on the proposed regulations until July 22, 2013.  They may be submitted by online by visiting www.regulations.gov.

Photo credit: dyet

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited.  CONTACT INFORMATION: www.culturalheritagelawyer.com

Sunday, May 26, 2013

Free Museum Admission for Military Personnel Starts Memorial Day

The Blue Star Museums program offers free admission to active duty, National Guard and Reserve military personnel and their families from Memorial Day through Labor Day. More than 2000 cultural institutions throughout America provide this service in honor of our nation's military.

Participating Blue Star cultural institutions can be found here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Thursday, May 23, 2013

Discovery Delay Asserted by Government as Sotheby's Seeks Preliminary Court Hearing on Cambodian Ownership


Sotheby's wants a preliminary hearing to argue the law, and the government wants more discovery from Sotheby's to argue the facts. That continues to be the posture of the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture Currently Located at Sotheby's.

Yesterday federal prosecutors criticized Sotheby's and Decia Ruspoli di Poggio Suasa, claimants in the forfeiture case, for "yet another effort to delay discovery in the case." The U.S. Attorney's Office for the Southern District of New York objected to a letter recently submitted by the claimants that requests a pre-discovery hearing to discuss the meaning of Cambodia's cultural property ownership law.

Prosecutors write that the claimants “should not be permitted to delay [the case] further by being granted a hearing on an issue that will not resolve the case.” They argue that "the appropriate course of action is to continue and complete fact discovery on all issues in the case.”

The claimants disagree, explaining that the issue of whether Cambodia's law declares ownership over the statue is a matter the court should consider before the claimants provide further information to prosecutors.  In their May 10 letter to the federal district court, Sotheby's and Decia Ruspoli di Poggio Suasa write that the issue of whether Cambodia owns the statue is a matter of law, not fact, which the judge must address rather than a jury.

But federal lawyers counter that the question of whether the Duryodhana sculpture from the Prasat Chen temple at Koh Ker is owned by Cambodia and was stolen from that nation turns on the facts as well as the law.

Prosecutors make the two-pronged assertion that "Cambodia declared itself the owner of the Statue through its clear and unambiguous national ownership laws" and that "Cambodia acquired the Statue in the 'general manner' and that the Statue was then stolen from Cambodia 'in the commonly used sense of the word.'"

The McLain/Schultz doctrine, the prosecutors argue, supports the proposition that a cultural patrimony law is one way by which a nation can own cultural material.  And Cambodia’s national ownership law is clear, they maintain. “Claimants dispute only that Koh Ker and the Prasat Chen temple were, in fact, part of the national or colonial domain.” This dispute, prosecutors stress, “involve[s] factual questions that are matters for summary judgment or trial.”

Prosecutors also assert that the second way that Cambodia owns the Duryodhana statue is through the general understanding of what it means to steal:
But Schultz and McClain certainly do not stand for the proposition that a state can never "own" an object in the absence of a national ownership law. Rather, McClain makes clear that a state can come to own property either by "declar[ing] itself the owner" through a national ownership law, or by "acquir[ing] such property in the general manner by which private persons come to own property."  McClain, 545 F.2d at 1002. And Schultz, in adopting the reasoning of McClain, plainly contemplated that an object could be "stolen" not only by virtue of having been "possessed or disposed of by an individual in violation of a national patrimony law," but also "'stolen' in the commonly used sense of the word, for instance, where an object is taken from a museum or a private collection." 333 F.3d at 399.
Prosecutor allege that the monuments of Koh Ker were built by Cambodia state under Jayavarman IV, that the state never transferred Koh Ker or the statue to anyone, that looters stole the statue in 1972 and trafficked it in pieces to Thailand, and that a well-known collector purchased it knowing that it was stolen. “These factual allegations … do not depend upon an analysis of Cambodia's national ownership laws ….,” the prosecutors contend.

In an effort to press for disclosure of information from Sotheby’s, the U.S. Attorney’s Office avers that
it would be most efficient to conduct discovery on all factual issues in this action simultaneously, as the discovery will be largely overlapping.  Evidence regarding the Collector, for instance, will be relevant not only to the issue of whether the Statue was stolen from Cambodia, but also to the issue of Sotheby's knowledge  of the theft, as the Amended Complaint alleges that Sotheby's "consulted regularly with the Collector regarding the sale of the [Statue]," that Sotheby's "knowingly omitted the Collector's acquisition of the [Statue] from the provenance information it provided,” and that Sotheby’s was informed by “a scholar of Khmer art closely associated with the Collector (the "Scholar")" that the Statue was stolen.
The claimant’s, however, are resisting this push.  That is why they request that “the Court schedule a pretrial conference pursuant to Rule 16 of the Federal Rules of Civil Procedure to discuss appropriate procedures for reaching resolution on what is likely to be the dispositive issue in this case: whether any of the French colonial decrees the Government has identified clearly and unambiguously declare Cambodia to be the owner of the statue at issue in this case."

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Saturday, May 18, 2013

Roman, Byzantine and Other Conflict Antiquities from Syria



Antiquities from several Syrian cultural eras continue to appear on the art market. Since the last blog post describing this problem, Lebanese Broadcasting Corporation International produced the above May 17, 2013 report (not in English). It describes the arrest of one Lebanese and three Syrian nationals by Lebanese General Security for trafficking Byzantine, Roman and Aramaic artifacts stolen from Syrian churches and cemeteries.

Foreign Policy on May 8, 2013 similarly tells how the Syrian civil war has led to a "bull market for antiquities dealers and thieves."

American buyers should remain vigilant about purchases that have no collecting history or have suspicious provenance.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Monday, May 13, 2013

Government Petitions to Dismiss Charges in Korean Currency Case

Prosecutors in Detroit, Michigan on Friday moved to dismiss the receiving and transporting stolen property charges against Wong Young Youn.  Earlier this year it was reported that the defendant was cooperating with authorities in the Korean currency plate case as officials pursued similar charges against Midwest Auction Galleries owner James Amato. Now U.S. Attorney Barbara McQuade (right) seeks to dismiss Youn's case without prejudice.

A defendant is presumed innocent unless the prosecution proves guilt beyond a reasonable doubt

Police arrested the pair for their alleged role in the possession and sale of an 1893 Hojo currency plate, claimed by prosecutors to be stolen from Korea and to be one of only three plates in existence. The government has not yet cited the legal authority that supports Korea's ownership of the plate. Details of the two year investigation can be found in a prior January 2013 blog post.

Prosecutors write in last weeks' court filing that they require additional time to prepare the case in order
(1) to develop and obtain evidence sufficient to establish defendant’s guilt beyond a reasonable doubt;  
(2) to investigate the full extent of the offense(s) in question and identify all other individuals who should be held criminally responsible for the offense(s); or 
(3) to decide whether criminal prosecution of defendant for the offense(s) in question is in the public interest.
The dismissal of Youn's case would leave Amato as the only one charged in the pending in the case. A dismissal without prejudice, nevertheless, would allow the government to reinstate criminal charges against Youn at a future date.

[UPDATE May 22, 2013:  The court on May 13, 2013 granted the dismissal of the charge without prejudice.]

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Saturday, May 11, 2013

U.S. Attorney Files Complaint to Forfeit Peruvian Artifacts Seized at Miami International Airport

Federal prosecutors in Miami on Friday filed a complaint to forfeit ancient artifacts from Peru. The office of U.S. Attorney Wifredo Ferrer (right) alleges that Peruvian citizen Jean Combe Fritz transported 29 banned heritage objects on a flight to Miami International Airport on August 21, 2010. U.S. Customs and Border Protection (CBP) detained the items following a secondary examination of Combe Fritz's luggage that revealed "ancient indigenous artifacts."

The court pleading cites a violation of the Convention on Cultural Property Implementation Act (CPIA). The CPIA is the federal law that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Under the terms of the CPIA's Memorandum of Understanding (MoU) between the U.S. and Peru, designated cultural heritage materials from Peru are restricted from America's shores unless authorized.

The U.S. Attorney's verified complaint recites that Dr. Carol Damien Ferrer, Pre-Columbian art expert at Florida International University, concluded that the cultural objects were the kind of archaeological and ethnological material covered by the MoU. Luis Chang, Minister Counselor of the Embassy of Peru, also confirmed that the MoU covered the detained items.

Ferrer's office subsequently filed a forfeiture action in the U.S. District Court for the Southern District of Florida, asserting:
the United States has a reasonable basis to believe: that the Defendant Artifacts were produced by indigenous tribal people in Peru during the Pre-Columbian period, or in the Colonial period; that they are important to the cultural heritage of the Peruvian people; that they are designated Pre-Columbian and Colonial  textiles, metals, lithics, and perishable remains as listed in 19 C.F.R. 12.104(g) and are thus subject to export control by Peru.
The Defendant Artifacts were imported into the United States without any certification from Peru that the exportation of the artifacts from Peru was lawful under Peruvian law, as required by the CPIA, 19 U.S.C. § 2606(a).
The objects seized by CBP include a Moche bone carving (left), a 12 piece Inca burial bundle, an Early Horizon/Chavin stone carving, a Moche copper and bronze spatula, a Nazca mantle, and a Chimu weave fragment.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Wednesday, May 8, 2013

"Claimants Deny Knowledge," Affirmative Defenses Raised in Sotheby's Cambodian Sculpture Case

"Claimants deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in ... the Verified Complaint." That is the refrain found in 23 paragraphs of answers filed by Sotheby's and Decia Ruspoli di Poggio Suasa in the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture.

In reply to the government's amended forfeiture complaint--first proposed in November 2012 and filed with the Manhattan federal district court in April 2013--the claimants' May 6 pleading denies knowledge that the Duryodhana statute was stolen. The claimants say that Decia Ruspoli di Poggio Suasa and her husband purchased the statue "in good faith and for a fair price" in 1975, explaining
Sotheby's arranged importation of the Statue from Belgium to the United States and that prior to doing so, Sotheby's obtained documented provenance (in the form of a 1975 invoice from an auction house that speaks for itself and to whose contents Claimants refer the Court) establishing that the Statue had been sold in London in 1975, a time when Cambodia had enacted no clear and unambiguous laws declaring itself the owner of all antiquities in Cambodia.
U.S. authorities seek title to the Duryodhana sculpture in order to repatriate it to Cambodia. Prosecutors allege that the cultural object is from the Prasat Chen temple at Koh Ker, and that it's feet remain in Cambodia. Despite efforts by the claimants to dismiss the case, the court refused their request on March 29.

Several affirmative defenses are raised in the claimants' latest pleading. They include the defenses of failure to state a claim, an innocent owner defense, laches and a second time-based defense, estoppel, Fifth Amendment due process, desuetude (lapse of a law because of lack of enforcement), and adverse possession. Other affirmative defenses raised seek to attack the French Colonial decrees on which the prosecution's current amended complaint relies. The claimants claim that the relevant colonial laws in effect in Cambodia did not provide fair notice of Cambodia's ownership to the statue, were "not drafted with sufficient clarity to survive translation into terms understandable by and binding upon American citizens," are not laws that have not been enforced, and never vested ownership of the statue in Cambodia.

Hat tip: Gary Nurkin

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Tuesday, May 7, 2013

It's Time to Talk About Repatriation Options for the Private Collector

Last weeks' decision by the Metropolitan Museum of Art to repatriate two 10th century Khmer statues to Cambodia prompted a thoughtful response from Professor Patty Gerstenblith that focuses on the important matter of private collectors and repatriation.

In an opinion letter published by The New York Times, the director of the Center for Art, Museum and Cultural Heritage Law at DePaul University College of Law writes, "The Met is leading the way, along with other museums ... in deciding that restitution accompanied by cultural property agreements establishes mutually beneficial relationships that allow the world’s cultural heritage to be shared with the American public in ways that ensure the objects’ authenticity and impart knowledge as well as beauty."

Prof. Gerstenblith pointedly adds, "While public institutions can benefit from these agreements, it is less clear that the private collector can do so. The challenge now is to create incentives for private restitution that can produce comparable mutual benefits."

Creating safe and easy repatriation options for private collectors who discover that they are in possession looted, stolen, or smuggled cultural property is an important matter for discussion. No mechanism currently exists that smoothly facilitates the repatriation of contraband cultural heritage without exposing innocent collectors or good faith purchasers to potential legal and financial risks. There is no equivalent "Gun Buy Back Program" or "National Prescription Drug Take-Back Day" for archaeological, paleontological, ethnological or other cultural heritage items. That is why a conversation among policymakers, archaeologists, collectors, dealers, auction houses, and other stakeholders needs to take place.

Photo credit: Gytizzz

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Monday, May 6, 2013

Federal Forfeiture Complaint Filed in ACCG Baltimore Test Case

The United States Attorney's Office for the District of Maryland has filed a complaint to seize and forfeit ancient Chinese and Cypriot Coins. The Ancient Coin Collector's Guild (ACCG) attempted to import the coins into Baltimore on April 16, 2009 in defiance of import regulations restricting the protected cultural objects under the Convention on Cultural Property Repatriation Act (CPIA).

The ACCG flew the coins in from London on British Airways and told U.S. Customs and Border (CBP) that they were from China and Cyprus, dated between 400 B.C. and 220 A.D., had no known provenance, and had no known find spots. CBP seized the coins, and the ACCG filed a lawsuit soon thereafter, before federal officials brought a formal forfeiture action.

The ACCG's suit failed in the federal district court, the court of appeals, and the U.S. Supreme Court.

Following the supreme court's March 25, 2013 rejection to hear the case, prosecutors filed a formal forfeiture complaint in the federal district court on April 22.  The forfeiture action brings a new opportunity for the ACCG to relitigate the matter.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Wednesday, May 1, 2013

German High Court Rules No Export Permit Required in Case Where No Evidence Offered That Ancient Coins & Medals Were Regulated Archaeological Goods

The Bundesfinanzhof, or Federal Fiscal Court, ruled on March 6, 2013 that an exporter of ancient coins and medals did not have to obtain a permit under European Commission rules that regulate the export of cultural goods. The Munich based court is the highest appellate tribunal in Germany with jurisdiction over tax and customs matters.

Ancient coins classified as archaeological objects require export permits from Germany, but the court in this case found no evidence offered by the parties to justify that the objects in question were archaeological goods.

In October 2008, the plaintiff presented export paperwork to the Principal Customs Office describing approximately 32 coins and medals. (Where they were from and exactly what types of items they were are not described by the court.) The plaintiff declared the coins and medals to be 1500 to 2400 years old and valued between 50 EUR and 400 EUR. The Principal Customs Office took the position that European Commission Council Regulation EC No 3911/92--presently No 116/2009--required the coins and medals to have an export permit because they were protected cultural goods. The customs office refused to make an exception under a section of the EC regulations allowing an exception in cases where goods "are of limited archaeological or scientific interest, and provided that they are not the direct product of excavations, finds or archaeological sites within a Member State, and that their presence on the market is lawful." The plaintiff disagreed with the customs office decision and took legal action.

[Sidebar: European Union member states have adopted export rules to stop the trafficking of cultural goods. EC No 116/2009 declares:
The export of cultural goods outside the customs territory of the [European] Community shall be subject to the presentation of an export licence... The export licence shall be issued at the request of the person concerned ... by a competent authority. However ... the Member State ... is authorised not to require export licences for the cultural goods ... where they are of limited archaeological or scientific interest, and provided that they are not the direct product of excavations, finds or archaeological sites within a Member State, and that their presence on the market is lawful. 
The export licence may be refused, for the purposes of this Regulation, where the cultural goods in question are covered by legislation protecting national treasures of artistic, historical or archaeological value in the Member State concerned. 
[D]irect export from the customs territory of the Community of national treasures having artistic, historic or archaeological value which are not cultural goods within the meaning of this Regulation is subject to the national law of the Member State of export.
Items defined as cultural goods are listed in Annex I and include archaeological objects over 100 years old and collections of numismatic interest.]

The lower fiscal court sided with customs, but the Federal Fiscal Court ruled for the plaintiff. The Bundesfinanzhof's explained these Guidelines at the outset of its opinion:
Archaeological objects as defined in EC legislation on the export of cultural goods (Regulation No. 116/2009) are only those that have a value for archaeology, that is man-made or worked on objects, able to convey the findings of past cultures, especially about their customs, technical and artistic development, political and social structures, religion and the like. Items that illustrate lessons learned elsewhere about past cultures and therefore possibly for archaeology have no meaning, and are not "archaeological objects" or finds. Ancient coins can be archaeological objects.
But the Federal Fiscal Court found no determinations made by the Principal Customs Office or the lower court that the coins and medals in question actually constituted archaeological objects in this case.  The court wrote:
The archaeological interest in an object is to be evaluated in this context by the Principal Customs Office or the judge according to the circumstances of the individual case, taking as key criteria, in particular, how the object in question is valued in the market and whether the same or similar objects to a greater extent involving the trade are ones in which archaeological institutions and collections are not involved, but where collectors are involved who are not interested in such coins as an "archaeological" interest but out of a passion for collecting, because of the aesthetic value of the objects or other interests.
The Bundesfinanzhof pointed out that that the lower court "made no findings as to whether the disputed coins and medals for some special reasons would have a meaning and some value for archaeology," adding the the customs office "contributed nothing." In fact, the Federal Fiscal Court decision observed that the information provided by customs from the Württemberg State Museum could not constitute "a proper basis for a finding, especially since it is inconsistent, when on the one hand the issue of an export permit is said to be required, and on the other hand the State Museum leaves it open whether this involves 'archaeological goods' at all."

In contrast, the plaintiff's position that the coins and medals were "mass produced" and "often found in general trade" went uncontradicted, the high court noted. As a result, the Federal Fiscal Court entered a final decision without remanding the case to the lower court. The high court was convinced that another hearing would not produce "different findings."

The Federal Finance Court opinion is narrow in scope. The court reaffirmed that ancient coins can be archaeological objects. In the present case, the court sought evidence that the 32 ancient coins and medals qualified as archaeological objects subject to a cultural goods export permit. But the court found that the customs house and the State Museum either offered either no evidence or inconclusive evidence that the items in question were archaeological. The ruling continues to uphold the proposition that ancient coins qualifying as archaeological objects require export permits.

The Federal Finance Court's web site explains that the "Federal Fiscal Court only adjudicates on the correct application of law in concrete individual cases. Although its decisions can only bind the respective parties, they are still authoritative for the taxation of other tax paying citizens where the same facts of case apply." The full text of the decision may be found at docket VII R 33 34/11. 

Acknowledgment: Dr. Hubert Lanz, president of the Federation of European Numismatic Trade Associations, for providing an English version of the court decision.  While this post seeks to accurately convey the German court's decision, the English translations are the author's own and are subject to error or interpretation.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com