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Legal Authorities

A Resource by the Marine Protected Areas Federal Advisory Committee (These statements do not necessarily reflect the positions of NOAA or the U.S. Government)

Summary of Management Authorities Applied to Submerged Cultural Resources in U.S. Waters and in The Area/High Seas (PDF)

State Submerged Cultural Resource Laws

Underwater Cultural Heritage Law Study (PDF)

Ocean Law Search Database

Federal Responsibility for Coastal and Maritime Cultural Heritage:

Excerpt from MPA White Paper Recommendations for Integrated Management Using a Cultural Landscape Approach in the National MPA System (PDF)

The Antiquities Act of 19061 initiated the modern era of federal responsibilities to protect cultural heritage. The act prohibits the appropriation, destruction, excavation, or injury of "any historic or prehistoric ruin or monument, or any object of antiquity, situated on lands owned or controlled by the Government of the United States without the permission of the Secretary of the Department of the Government having jurisdiction over the lands on which said antiquities are situated."2 The act also provides the President of United States with the authority to establish national monuments in order to protect "historic landmarks, historic and prehistoric structures, and other objects of interest".3 From its earliest uses by Theodore Roosevelt, vast areas and countless cultural and natural resources have gained protection as national monuments.

Significantly, the largest national monument, Papahanaumokuakea Marine National Moment (PMNM) encompasses 140,000 square miles of submerged and emergent lands and marine waters over and around them. PMNM management recognizes the intimate linkages between its cultural and natural heritage resources by combining both the practices of modern western science and archaeology with the traditional cultural knowledge, spiritual beliefs and ancient authority of the Native Hawaiian people. It represents an important example of integrated cultural and natural resource MPA management. The Antiquities Act is limited to lands owned or controlled by the United States Government. While it is worth noting that the Antiquities Act does not call for consultation, in some recent cases, public involvement has been extensive. In the marine environment the Act may apply on the outer continental shelf and in federal marine protected areas such as National Parks, National Seashores and National Marine Sanctuaries.4

The National Park Service Organic Act of 19165 (et seq., as amended and supplemented) charges the National Park Service to conserve the "historic objects" in parks and provide for their enjoyment so as to leave them unimpaired for future generations. Pursuant to the Organic Act, 36 C.F.R § 2.1 prohibits possessing, destroying, injuring, defacing, removing, digging or disturbing from their natural state the paleontological specimens, cultural or archeological resources in parks. The enabling legislation for individual units of the National Park System may prescribe specific cultural resources or values to be protected.

The National Historic Preservation Act of 19666 (NHPA) requires federal agencies to meaningfully consider the potential effects of federally assisted or permitted projects on properties included in, or eligible for inclusion in, the National Register of Historic Places. Meaningful consideration includes consultation with all concerned parties, not just State or Tribal preservation offices.7 The Section 106 process of the NHPA is triggered by the presence or possibility of potentially eligible, eligible, or listed NRHP properties that may be affected by the proposed project. Section 110 mandates that agencies create preservation programs "for the identification, evaluation, and nomination to the National Register of Historic Places, and protection of historic properties." Section 110 requires that agencies actively identify potentially eligible properties and consult "with other Federal, State, and local agencies, Indian Tribes, Native Hawaiian organizations carrying out historic preservation planning activities, and with the private sector."8

The Archaeological Resources Protection Act of 19799 (ARPA) was enacted to address challenges to the vagueness of what an "antiquity" is under the Antiquities Act and to explicitly protect "archaeological resources and sites which are on public lands and Indian lands."10 ARPA has many specific requirements involving research permitting and requiring more proactive federal agency management of archaeological resources. The Act makes some violations a felony offense, and imposes substantial penalties for illegal excavation, procurement, or trade of archaeological artifacts from federal and Indian lands. ARPA requires federal land managers to create programs to promote the protection of archaeological resources through public education and outreach.11 The definition of public lands under ARPA explicitly excludes the Outer Continental Shelf.

The National Marine Sanctuaries Act12 (NMSA) offers strong legal protections, within the confines of each sanctuary's designation document, to cultural resources within the boundaries of the thirteen established Sanctuaries and enables NOAA to regulate activities, issue permits, and assess civil penalties. The NMSA has withstood every legal challenge and led to the largest civil penalties ever assessed for damaging underwater or terrestrial cultural resources. In all respects except in the geographical limits of its application, NMSA offers model legislation for supporting the comprehensive and integrated management and protection of cultural and natural resources.

The Sunken Military Craft Act13 (SMCA) applies to sunken military craft belonging to United States wherever located. In addition, craft owned by foreign governments are protected in U.S. waters up to 24 nautical miles from shore. The SMCA protects sunken military craft by prohibiting certain activities without permission from the federal government. It also prohibits the application of the common law of finds and maritime law of salvage to military craft.

The Abandoned Shipwreck Act of 198714 (ASA) protects a single class of cultural heritage resource – abandoned shipwrecks on the submerged lands of the several states. While some shipwrecks are associated with cargoes of precious metals, jewels, and artifacts, these represent a minute fraction of the total resources. All shipwrecks have the potential to contribute to historical, archaeological, and, increasingly, ecological knowledge. Many of these may have recreational value, while significant numbers of these shipwrecks are potential grave or memorial sites. The intent of the ASA was to protect historic shipwrecks from damage or destruction by salvors – principally "treasure hunters" seeking to find and remove artifacts of portable economic value.

Under the ASA, the U.S. asserted title to all abandoned shipwrecks embedded on the submerged lands or in coralline formations protected by a state, or on submerged state lands, and eligible for, or included in the National Register of Historic Places.15 The ASA transferred the title to abandoned shipwrecks to the state or Indian Tribe owning the submerged lands on which the wrecks reside. Abandoned wrecks in federal waters remain the property of the United States.

Legal challenges by the treasure hunting community have questioned the universal transformation of abandoned historic shipwrecks from private property to public resources. In determining whether a shipwreck is "abandoned" for the purposes of the ASA, U.S. federal admiralty courts in individual cases have failed to come to a consensus on what an "abandoned shipwreck" is and who has the burden of proof (i.e., the government or the potential salvor), thus limiting the applicability of ASA for shipwreck protection.

The ASA was forward-thinking in directing states to establish a multiple-use management regime for the protection of shipwrecks that also incorporates the protection of natural resources. Additionally, the Act encourages States to create underwater shipwreck parks or preserve areas to encourage public access and education and to provide additional protection for shipwrecks and their associated ecosystems.

Resources

Federal Submerged Cultural Resource Laws

Submerged Cultural Resource Laws by State

  1. Antiquities Act, 16 U.S.C. § 431-433m (2009).
  2. Antiquities Act, 16 U.S.C. § 433 (2009).
  3. Antiquities Act, 16 U.S.C. § 431 (2009).
  4. Zander, Caroline M. and Varmer, Ole (1996). Contested Waters. Common Ground, 1 (3/4).
  5. National Park Service Organic Act. 16 U.S.C. § 1 et seq. (1916).
  6. National Historic Preservation Act, 16 U.S.C. § 470 et seq. (1966).
  7. King, Thomas (2003). Cultural Resource Laws and Practices: An introductory Guide. Walnut Creek, CA: AltaMira Press.
  8. National Historic Preservation Act, 16 U.S.C. § 470h-2(a) (1966).
  9. Archaeological Resources Protection Act, 16 U.S.C. § 470 et seq. (1979).
  10. Archaeological Resources Protection Act, 16 U.S.C. § 470aa. (1979).
  11. McManamon, Francis P. (2000). The Archaeological Resources Protection Act of 1979 (ARPA). Reproduced from Linda Ellis (Ed.), Archaeological Method and Theory: An Encyclopedia. New York: Garland Publishing. Retrieved September 1, 2001 from: http://www.nps.gov/archeology/tools/Laws/arpa.htm
  12. National Marine Sanctuaries Act, 16 U.S.C. § 1431-2441 (1972). Originally Title III of the Marine, Protection Research Sanctuaries Act of 1972.
  13. Sunken Military Craft Act, 10 U.S.C § 113 (2004).
  14. Abandoned Shipwreck Act, 43 U.S.C. § 2101-2106 (1987).
  15. Abandoned Shipwreck Act, 43 U.S.C. § 2105 (1987).