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SHIPWRECKS: Salvage or Sanctity?

Attempts to protect historic shipwrecks within national parks have been complicated by a confusing collection of laws and court rulings. In some cases, even when shipwrecks are within the park, the Park Service has been at odds with state law.

THE RUMOR HIT the Internet late last summer. Emeralds, each worth up to $80,000, were being found "in large numbers" near the HMS Fowey, an English man-of-war that sank off the Florida coast in 1748 and today lies within the waters of Biscayne National Park at the northern end of the Florida Keys. "A galleon may have sunk very near the Fowey," reported the web site for treasure hunters, exulting that "whole groups of divers in pontoon boats are pulling up and diving in ... to sift the sands...."

The rumor was false. There were no emeralds, no Spanish galleon, and the part about the divers was an exaggeration. But the staff at Biscayne soon made a real discovery at the site: fresh pits on the ocean floor, a result of the latest of many visits by looters since the Fowey was discovered in 1978. Even though the wreck lies in the park, the National Park Service had to fight a four-year legal battle to gain control of it.

Encompassing 40 islands and more than 175,000 acres of water containing scores of shipwrecks, Biscayne faces constant pressure from treasure hunters based in Miami and the Keys, long an area of freewheeling fortune-seeking. The fact that wrecks such as the Fowey lie in a national park, sometimes in areas off-limits to diving, does not deter some underwater thieves. "They get the mentality that if it's on the bottom, they want to loot it," says Jim Adams, a cultural resources specialist at Biscayne. That includes three divers caught in the park in 1986 with a metal detector and artifacts from a shipwreck, resulting in $500 fines and the government's seizure of a boat, navigation gear, and diving equipment worth $18,000.

In that case, the looters were amateurs who made it easy for rangers to build a case; among the seized items was videotape showing what they had done. But many national parks are trying to protect their shipwrecks and other underwater archaeological sites from far more sophisticated treasure hunters--both looters and legal commercial salvors--equipped with new technology that can rapidly scan vast reaches of the ocean floor and enable dives to the deepest shipwrecks.

The scope is vast: 2.25 million acres of water in more than 65 parks. Parks range from the remote ocean expanses of Dry Tortugas National Park in the Gulf of Mexico to Isle Royale National Park in Lake Superior and even Yellowstone Lake in Wyoming, which contains sunken steamboats, submerged docks, and remains of wagons. These waters preserve a maritime and cultural heritage going back centuries, not to mention the thousands of prehistoric and historic sites that lie under dammed river valleys such as Glen Canyon and Lake Mead national recreation areas on the Colorado River, two of the 19 national recreation areas with submerged sites. "Our assessment is that all the national parks are at risk for this sort of thing," says Tom Watts-FitzGerald, the assistant U.S. attorney who prosecuted the Biscayne case.

Aside from looting, a legal threat to shipwrecks in national parks is the commercial salvage industry, which has evolved from treasure hunters in T-shirts and cutoffs to well-funded operations equipped with high-tech ships and gear and platoons of lawyers with long experience in knocking down regulatory barriers.

The staff at Cape Canaveral National Seashore in Florida was once surprised when a salvor asserted a claim to what he believed was a Spanish galleon lying within the seashore. In 1988 rangers issued citations for illegal use of metal detectors to people working for the salvor. Charges were dismissed, because he had a court order allowing him to look for the ship. "It was a shock to us," says John Stiner, resources management specialist at Canaveral. A long court battle followed involving the State of Florida, the National Park Service (NPS), and the U.S. Army Corps of Engineers, but eventually the federal government prevailed by asserting its right to require permits for the salvage.

Other court actions have served as a wake-up call to the Park Service. Even though the Park Service doesn't allow treasure hunting or salvage, many shipwrecks are open to salvage because state governments often control ocean bottoms within park boundaries. Such was the case at Assateague Island National Seashore in Maryland and Virginia in 1996, when the Commonwealth of Virginia issued permits for a salvor to search for the remains of a pair of Spanish ships that sank 200 years ago. One of these ships is believed to lie within the boundary of the seashore, but the Park Service could not stop the salvage because Virginia controls the "bottomlands" off the coast.

"That's when we discovered for the first time there can be park units where the National Park Service has absolutely no ability legally to prevent that from happening," says Michele Aubry, a senior Park Service archaeologist in Washington. "This has been a real eye-opener for us."

The Assateague case, however, has turned into a major shock for the salvage industry. Alerted by the U.S. Department of Interior, Spain sued to stop the salvor, Sea Hunt Inc., of Chincoteague, Virginia, from disturbing what it regards as tombs of its war dead. Last summer the U.S. Fourth Circuit Court of Appeals in Norfolk ruled that Spain had never formally abandoned the shipwrecks and still owns them. Salvors protested that the ruling flew in the face of the legal principle of finders-keepers that has long governed salvage cases and could render off-limits thousands of shipwrecks carrying billions of dollars in potential booty.

"It really is a pretty abrupt turnaround to 300 years of traditional admiralty law," Ben Benson, owner of Sea Hunt, told the Associated Press. Benson plans to appeal the case to the U.S. Supreme Court.

Attempts to protect shipwreck sites in parks have been complicated by the confusing maze of laws and court rulings that have resulted from court fights with stakes running into the hundreds of millions of dollars. The Abandoned Shipwreck Act of 1987 gave states control over abandoned wrecks within three miles of land. But the law doesn't address wrecks farther out to sea, and lawyers for commercial salvors have steadily whittled away at the legal definition of abandonment.

The laws commonly used to protect sites on land--the Archaeological Resources Protection Act, the National Historic Preservation Act, and the Antiquities Act--also provide some safeguards for underwater resources. But significant gaps remain, and proposals for new laws that would plug some of them are making their way through the federal bureaucracy.

A Submerged Heritage Protection Act would extend federal control of submerged resources beyond state waters, and the Sunken State Craft Act would provide special protections for other nations' sovereign vessels in U.S. waters. Two recent executive orders governing coral reef protection and marine protected areas also have given a boost to underwater protections.

At the international level, NPS is represented on the U.S. delegation helping to write a new agreement to protect shipwrecks under the auspices of the United Nations Educational, Scientific, and Cultural Organization. The agreement would give nations control over their submerged cultural heritage as far as 200 miles out to sea.

For now the Park Service has to rely on existing law and its limited resources to follow its policy of leaving shipwrecks and other submerged sites in place unless there is some compelling reason to disturb them. Rangers get training in archaeological resource protection through the Federal Law Enforcement Training Center in Georgia, learning how to work with archaeologists and U.S. attorneys versed in the science to bring cases against looters. To get more patrols out on its waters, the agency is relying on partnerships with other law enforcement agencies. At Biscayne National Park, for example, the Park Service works with local marine patrols and the Coast Guard to keep an eye on the heavily traveled boat lanes in the park. "There is a lot of interagency cooperation that can act as a force multiplier for the Park Service," says assistant U.S. attorney Tom Watts-FitzGerald.

That kind of teamwork was key to a major undercover operation against shipwreck looters in the late 1980s in Channel Islands National Park in California. In that case, a husband-and-wife team of rangers signed on with a charter boat carrying the California Wreck Divers Club into waters that were part of the park, the adjoining national marine sanctuary, and a state underwater preserve. For three days, the two rangers dove with the club, observing as divers hammered at the wreckage of several ships, including the General Winfield Scott, a steamer that went down in 1853 while carrying miners home during the Gold Rush. Brass and copper fittings and planks from the ship were removed as the boat captain stood watch for park rangers, ready to sound an underwater alarm to alert the divers.

When the boat returned to the dock, it was met by park rangers, local sheriff's deputies, and agents of the National Oceanic and Atmospheric Administration, which administers the national marine sanctuary. A total of 56 federal and state criminal and civil charges were filed against 19 people and one corporation. All but one charge was successfully prosecuted, resulting in $200,000 in fines. The ship's captain spent 30 days in jail, and most of the artifacts were recovered. This case affirmed that the federal regulations protecting these resources superseded the rights the defendants had claimed under Admiralty Laws of Finds and Salvage. But it also drew attention to the fact that the Park Service has limited resources to prosecute these cases, which can be in litigation for years. This particular case began in October 1987 and was not settled until September 1994.

Although the Channel Islands case sent an unmistakable message to the local diving community, that doesn't mean looting has stopped, says Jack Fitzgerald, the ranger in charge of the investigation. Evidence of tampering is sometimes found among the 150 wrecks in the park's 125,000 acres of water--an indication that looters are going deeper and being more careful to avoid detection. And that's not particularly difficult in a park with just six rangers to patrol all that water as well as 125,000 acres of land, he says.

Rangers stress that looters are a few bad apples in a sport that has fairly high standards when it comes to preserving shipwrecks. At Isle Royale National Park in Lake Superior, the close relationship between the park and local divers has helped reduce the threat of looting for its ten major shipwrecks. But as divers go deeper, the park is keeping a closer eye on wrecks that lie in waters down to about 185 feet. There's also the question of undiscovered wrecks in the park, which extends 4.5 miles into the surrounding waters. "We don't know exactly everything that's down there," says cultural resources specialist Liz Valencia.

Learning more about the park system's underwater resources is one goal of the Systemwide Archaeological Inventory Program that began in 1992. For the inventory, the Submerged Resources Center of Santa Fe, New Mexico, has developed a relatively cheap, easily operated, yet durable system that other parks can use to find shipwrecks and other sites and map coral reefs. The center provides system-wide expertise.

The pilot project took place in Dry Tortugas National Park, which includes 100 square miles of ocean and seven small sand islands astride a centuries-old shipping lane 68 miles west of Key West, Florida. The area became known as a "ship trap" because many ships sank here. The archaeological data acquisition platform was mounted in a 25-foot outboard boat using a geographic information system format and remote sensing techniques. Bobbing around in small borrowed boats, the team was able to plot the location of about 40 of the estimated 200 shipwrecks in the park. Because plotting wrecks using satellite global positioning has become so accurate, the location of those wrecks will not become public knowledge--part of a general tightening of controls at Dry Tortugas to protect all of its resources, public information officer Rick Cook says. The program was expanded to include Biscayne National Park, allowing the Park Service to manage underwater resources at both ends of the Keys.

"We consider it a priority for parks to find creative ways to protect these underwater treasures," says Mary Munson, director of NPCA's south Florida office. "For example, the new general management plan for Dry Tortugas contains a submerged cultural resources strategy that commits the park to developing and instituting remote-sensing surveillance devices and placing mooring buoys to direct activity away from archaeologically sensitive areas."

The effort to foster innovations was hampered by lack of staff in late 2000. The Submerged Resources Center had been crippled by retirements and other losses to the point that it had only four full-time staff members rather than the eight or so it requires. Additional staff were expected by the end of this year.

Without better staffing and new laws to beef up protection, shipwrecks will remain vulnerable, officials say. Consequently, with thousands of shipwrecks in or near Park Service waters and only 150 rangers qualified to dive, officials tend to speak less about catching looters in the act and more about instilling a sense of responsibility among divers. "Most divers are perfectly educable if they aren't already inclined to leave it alone," says Daniel Lenihan of the Submerged Resources Center. Some divers have come into park visitor centers to show rangers artifacts they found underwater, unaware they had just broken the law, Lenihan says, so in such cases enlightenment rather than prosecution is the answer.

In general, the Park Service has to walk a fine line between protecting underwater archaeological treasures and responding to the growing public enthusiasm for wreck diving. Parks encourage underwater exploration and publish information for divers on their web sites, while making it clear that removal of artifacts is prohibited. Doing that means changing the public perception of shipwrecks as sources of riches rather than science by explaining that many are time capsules filled with a wealth of information about world history, sometimes remarkably well preserved by cold water and undisturbed by successive layers of human activity.

"We are stewards for an international heritage," emphasizes Larry Murphy, chief of the Submerged Resources Center. "Underwater sites should be treated no differently than those on land."

CHRIS FORDNEY is based in Winchester, Virginia. He last wrote for National Parks about a new National Park Service database available via the Internet that allows anyone to research the names of those who fought during the Civil War.
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Title Annotation:within national parks
Author:FORDNEY, CHRIS
Publication:National Parks
Geographic Code:1USA
Date:Mar 1, 2001
Words:2469
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