Access to Public Property

[Nugs Bunny]

Access to Public Property

The U.S. Constitution protects your right to speak and, in some instances, grants you a right to access public places to gather information. Your right to access public property is not absolute, however. Generally speaking, you have the same right of access to public property as the general public.
This section covers your access to public (i.e. government-owned) property. (Refer to the section on Access to Private Property for more information on entering privately owned property.) Not all government-owned property is open to the general public. Depending on the type of property you wish to enter, your right to access public places may be constrained by reasonable time, place, or manner restrictions, or by the government's interest in managing its property.

Here is an overview of the three types of public property you are most likely to encounter:

Property That Historically Has Been Open to the Public

Your right to access public property is strongest when the area you wish to access has historically been open to the public for the exercise of speech, public debate, and assembly. These areas are known as public forums and include spaces such as sidewalks, parks, and town squares. You may freely enter and gather information while in these public spaces, but you should do so without disturbing the peace or interfering with those around you. Your right of access does not confer immunity from all liability if your conduct is disruptive or harassing.

Property That Is Open to the Public for a Limited Purpose

Your right to access government-owned property that is only partially open to the public is a bit more limited. If the general public is permitted to access only certain areas or for certain limited purposes, you right to access the property for newsgathering purposes is similarly limited. For example, some parts of a courthouse are open to the general public, but portions of the courtrooms themselves are accessible only by the parties in the litigation and judges' chambers are completely off limits to the public.
However, some public property, even though it is open only for limited purposes, can take on the attributes of a public forum discussed above. A classic example of this type of property is public schools and universities. Although public school and university buildings are not wholly open to the public, some parts of a campus may be considered a public forum. If a school's large open quad is accessed from public sidewalks and streets and freely used by the general public with no apparent objection from the school administration, then the quad may be considered "dedicated" to public use, and therefore more like the traditional public forums of the public park and sidewalk. Additionally, if the school opens certain of its rooms for non-school meetings that are open to the public, those rooms, during those times, will be treated as public forums.
Remember that because public schools are not entirely public forums, school administrators often have the discretion to restrict the entry of outsiders, particularly while the school is in session. Check in with the school administration before entering school grounds or you may be liable for trespass. Additionally, some states laws prohibit people from loitering within a certain distance while school is in session. These "school loitering laws" are mainly aimed at keeping sexual predators and drug dealers away from schoolchildren, but be aware that their language may be broad enough to cover lawful or innocent activity as well.

Property That Is Not Open To the Public

You cannot access or gather information on government-owned property that is not open to the general public. This type of property is known as a nonpublic forum in which the government can charge you with trespass if you enter without authorization. The following are examples of nonpublic forums:

• An airport terminal is a nonpublic forum. See International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992). The Supreme Court has noted that airports are "among those publicly owned facilities that could be closed to all except those who have legitimate business there." United States v. Grace, 461 U.S. 171, 178 (1983).
• Government-owned civic centers, stadiums, or theaters used for private commercial purposes are not public forums. When the government leases a convention center, the private lessee may legally exclude individuals who want to report on newsworthy events. The event coordinators may even grant exclusive media coverage rights to a particular media outlet and deny access to others who want to cover the event (or at least deny them access in their capacities as journalists).

Access to Public Property | Digital Media Law Project

 

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[Tom_in_CA]

thanx for posting nugs. Insofar as the varieties of land where public can be (stand, walk, whistle dixie, etc...), they would be governed by the rules of use, law, etc... So if something is prohibited (smoking, public nudity, murder, etc...) fine then, don't do it. But if it's not prohibited, then it's .... doh ... not prohibited. An activity need-not-have an "express allowance", in order to be able to do it. It just needs to not be DIS-allowed.

 

[Tom_in_CA]

And to add another wrench in this works, regarding what you say about "Property That Historically Has Been Open to the Public" : There are actually legal precedents, that say if a piece of private property has been historically (access, crossing, trail, etc...) for a certain length of time, then it has some sort of precedent, where , that too is not illegal to be on . Forgive me for not knowing the legal terms of this (perhaps someone else can chime in with the terms).

Example: There was a certain trail by a creek, next to a public county park, that equestrians had used for over 50 yrs. Because at a certain bend in the creek bottom, the trail in the public wooded/mountaneous park crossed the creek for a short distance, in order to get around a sheer cliff on the 1st side of the creek.

Fast forward to sometime in the 2000's, and a fellow had bought some old ranch land (that had been in a single family for 100+ yrs. prior to this), neighboring this park land. He went to erect fences around his entire property. And in doing so, had a fence up that cut off this trail. There was no way for the equestrians to around this bend, without crossing this creek (albeit only a short 20 or 30 yards distance). They objected, and it got nasty. The new property owner successfully showed, through laborious property boundry survey, that ....... indeed, this long-used trail crept onto his property at this one point.

The issue ended up in court, d/t the equestrian horse club community could no longer enjoy the complete loop around this country park anymore. Their lawyers argued something about Historical egress or something, and were successful! The property owner kept trying to portray it as "trespassing", but ..... in the end, when shown that the trail had been in continuous use for 50 yrs. (they talked to oldtimers who gave court testimony), the property owner lost out. He had to move the fence a few feet inward, to keep his sheep or dogs or whatever corralled.

True story!

 

[Professor of Engineering]

Thank you for the informative post!

 

[Nugs Bunny]

Thanks guys!

Tom you are correct, when on common public property, one can detect legally if there is no restriction. Keep in mind this information may not be posted online, in the law books, or on site.



Here is some useful information regarding Federal Property and Antiquities Act of 1906. Federal Land may be open to the public with no restriction on metal detecting, however if one excavates any artifact more than 100 years old, they would violate 16 U.S.C. 433.

Please do not confuse Public Property and Federal Property as how it pertains to the Antiquities Act, this does not apply to a City Park, but it does apply to the lawn at the IRS building.

http://www.cr.nps.gov/local-law/FHPL_AntiAct.pdf
This Act became law on June 8, 1906 (34 Stat. 225, 16 U.S.C. 431-433) and has been amended once. This description of the Act, as amended, tracks the language of the United States Code except that (following common usage) we refer to the “Act” (meaning the Act, as amended) rather than to the “subchapter” or the “title” of the Code.

16 U.S.C. 433, Penalties for damage, destruction, etc. of antiquities

Section 1 Any person who shall appropriate, excavate, injure, or destroy 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, shall, upon conviction, be fined in a sum of not more than five hundred dollars or be imprisoned for a period of not more than ninety days, or shall suffer both fine and imprisonment, in the discretion of the court.

 

[Nugs Bunny]

Although public school and university buildings are not wholly open to the public, some parts of a campus may be considered a public forum. If a school's large open quad is accessed from public sidewalks and streets and freely used by the general public with no apparent objection from the school administration, then the quad may be considered "dedicated" to public use, and therefore more like the traditional public forums of the public park and sidewalk.

 

[lockster99]

Not sure I want to try detecting in the schools "large open quad". Also, I've been told, assuming the quad has grass, that even cutting a plug is destroying school property. I like staying friendly with the school guys and security dudes because they let me detect on the outlying schools playgrounds and fields. Always been pretty good guys so far.

 

[Tom_in_CA]

.....however if one excavates any artifact more than 100 years old, they would violate 16 U.S.C. 433.....

.

Some fed. places reduce that to 50 yrs. But no matter, whether you/they choose "100" or "50", it still begs a question:

Has anyone here EVER had anyone ever follow them around, with a calculator-in-hand, doing the math on the ages of coins you just found ?

 

[worldtalker]

Not sure I want to try detecting in the schools "large open quad". Also, I've been told, assuming the quad has grass, that even cutting a plug is destroying school property. I like staying friendly with the school guys and security dudes because they let me detect on the outlying schools playgrounds and fields. Always been pretty good guys so far.

I got to know the boys from DPW that take care of all schools and parks pretty good,heck,I got one of them Hooked,they never say a word when I hunt.

 

[cudamark]

Not sure I want to try detecting in the schools "large open quad". Also, I've been told, assuming the quad has grass, that even cutting a plug is destroying school property. I like staying friendly with the school guys and security dudes because they let me detect on the outlying schools playgrounds and fields. Always been pretty good guys so far.

If you perform the recovery properly, it's not destructive.....or even visible.

 

[Tom_in_CA]

I got to know the boys from DPW that take care of all schools and parks pretty good,heck,I got one of them Hooked,they never say a word when I hunt.

Worldtalker, well....... perhaps these "rank & file" workers "never say a word" when you hunt. But how do you know their superiors, higher up, wouldn't have an issue with this ? You need to go all the way to the top, not just lowlings who have no real say-so. You can't be too safe, or too legal afterall. Keep asking up the chain of command to the proper higher authority. And as you ask, be sure to use words like "dig", "treasure", "remove", "holes", and "indian bones" . Afterall, you want them to know the full implications of your question. And it would be wrong to "mince words", or to get permission under false pretenses.

Let us know how it goes.

 

[cudamark]

Careful Tom, he might think your serious! You forgot the smileyface.

 

[Tom_in_CA]

Careful Tom, he might think your serious! You forgot the smileyface.

 

[worldtalker]

Worldtalker, well....... perhaps these "rank & file" workers "never say a word" when you hunt. But how do you know their superiors, higher up, wouldn't have an issue with this ? You need to go all the way to the top, not just lowlings who have no real say-so. You can't be too safe, or too legal afterall. Keep asking up the chain of command to the proper higher authority. And as you ask, be sure to use words like "dig", "treasure", "remove", "holes", and "indian bones" . Afterall, you want them to know the full implications of your question. And it would be wrong to "mince words", or to get permission under false pretenses.

Let us know how it goes.

Actually I have talked to the man in charge...the BOSS,I even showed him how I plug...his answer was...HAVE AT IT and good luck.

I wonder if it was because his name was Chris.

 

[Tom_in_CA]

Actually I have talked to the man in charge...the BOSS,I even showed him how I plug...his answer was...HAVE AT IT and good luck.....

Hmm, well certainly there must be someone higher up the ladder than him ? I mean, the person who is head over his dept. Or the mayor, etc... And even the mayor's decisions are not dictatorial. Technically it would need to go before a vote of the council members.

You know I say this all in jest ....... but believe it or not, there are those on forum discussions, when this comes up, that do indeed advice going as high to the top as you can. I suppose it's because they might have had experiences where ...... they'd gotten a "yes" from a park worker. Only to have some suit & tie higher-up later come by and "read them the riot act". Or to get a yes from a school teacher or janitor, only to later be reprimanded by a principal or coach who "promptly revokes that permission" (ie,: pulls rank, etc...). So there are actually md'rs who seek to avoid such things, by recommending to ask high up the ladder.

So my thoughts are ..... gee, why stop there? Because, heck, even a principal, is, himself, merely an "employee". Yes he is the final say-so over that school. But most certainly his "say-so" has authorities higher than him, at the district level. They can pull rank over even the principle. Right ?

 

[Nugs Bunny]

.

Some fed. places reduce that to 50 yrs. But no matter, whether you/they choose "100" or "50", it still begs a question:

Has anyone here EVER had anyone ever follow them around, with a calculator-in-hand, doing the math on the ages of coins you just found ?

No I doubt anybody ever has had somebody follow them with a calculator determining the age of coins. But it is very common for authorities to "stack the charges" to increase their profit.

For instance if one could be charged with, trespassing, destruction of Government Property and violation of the Antiquities Act. The first charge (trespassing) opens the door for the other charges.

I posted the information for general knowledge, not directly towards you. Lol I was feeling lazy at the time and didn't feel like posting twice.

I think this is information we all should keep in mind while searching for new places to detect, knowledge is power.

If one adopts the "who really cares theory" knowing the laws helps weigh the risks. I don't condone trespassing but I have been guilty of it myself years ago. We used to sneak onto property to drink beer and go swimming in the ponds. This was in my teens and early twenties, we did the same thing several other places too, private property, city property but never Fed property, lol even then I had enough sense to not poke THAT beehive!

I don't detect where I don't belong and I don't get pushed around by over zealous authority either, there are no "gray areas" if one does the research. As a prospector I've done a lot of research on this topic.

I really encourage folks to create a "packet" and take it with them when detecting. It should include the laws regarding; trespassing, detecting, unlawful arrest and any other laws that apply. It should include maps (with property lines marked if possible), written permissions you may have, and any other information that applies (BLM regs, Park reg, etc...) Take pictures when you get there and again when you leave and pick up as much litter as possible.

 

[cudamark]

Actually I have talked to the man in charge...the BOSS,I even showed him how I plug...his answer was...HAVE AT IT and good luck.

I wonder if it was because his name was Chris.

He could just as easily said NO, even with nothing in the law forbidding it. Sounds like a good guy or you just got lucky. I'd rather not have to depend on that when there isn't a prohibition in the first place.

 

[Nugs Bunny]

Here is some useful information regarding Federal Property and Antiquities Act of 1906. Federal Land may be open to the public with no restriction on metal detecting, however if one excavates any artifact more than 100 years old, they would violate 16 U.S.C. 433.--Nugs Bunny
What should be kept in mind too is that one has to determine what constitutes an artifact. Is a piece of glass an artifact ? What if it is a large piece of glass ? What if the glass is half of an artifact ? I think people use common sense in determining what an artifact is but I would think different people would have a different opinion on what that is. So to be safe one might suggest that any piece of glass could be an artifact and any should be turned in.

"Artifact" was used as a generic term by me to reference ALL the listed items in the Legal Code. Would a 120 year old coin qualify as an object of antiquity?

http://www.cr.nps.gov/local-law/FHPL_AntiAct.pdf
16 U.S.C. 433, Penalties for damage, destruction, etc. of antiquities
Section 1 Any person who shall appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity,

This isn't a debate, so there is no need to quote me. How you interpret the law doesn't interest me, that's why I started a separate thread. If you wish to debate these laws call your Congressman!

 

[Nugs Bunny]

Back On Topic

http://www.cr.nps.gov/local-law/FHPL_ArchRsrcsProt.pdf

Archaeological Resources Protection Act of 1979 AS AMENDED

16 U.S.C. 470aa, Findings and purpose

Section 2 (a) The Congress finds that—

This Act became law on October 31, 1979 (Public Law 96-95; 16 U.S.C. 470aa-mm), and has been amended four times. This description of the Act, as amended, tracks the language of the United States Code except that (following common usage) we refer to the “Act” (meaning the Act, as amended) rather than to the “subchapter” or the “title” of the Code.

(1) archaeological resources on public lands and Indian lands are an accessible and irreplaceable part of the Nation’s heritage;

(2) these resources are increasingly endangered because of their commercial attractiveness;

(3) existing Federal laws do not provide adequate protection to prevent the loss and destruction of these archaeological resources and sites resulting from uncontrolled excavations and pillage;

(4) there is a wealth of archaeological information which has been legally obtained by private individuals for non commercial purposes and which could voluntarily be made available to professional archaeologists and institutions.

(b) The purpose of this Act 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 and Indian lands, and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data which were obtained before October 31, 1979 [the date of the enactment of this Act].

16 U.S.C. 470bb, Definitions

Section 3 As used in this Act—

(1) the term “archaeological resource” means any material remains of past human life or activities which are of archaeological interest, as determined under uniform regulations promulgated pursuant to this Act. Such regulations containing such determination shall include, but not be limited to: pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items. Nonfossilized and fossilized paleontological specimens, or any portion or piece thereof, shall not be considered archaeological resources, under the regulations under this paragraph, unless found in an archaeological context. No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age.

(2) The term “Federal land manager” means, with respect to any public lands, the Secretary of the department, or the head of any other agency or instrumentality of the United States, having primary management authority over such lands. In the case of any public lands or Indian lands with respect to which no department, agency, or instrumentality has primary management authority, such term means the Secretary of the Interior. If the Secretary of the Interior consents, the responsibilities (in whole or in part) under this Act of the Secretary of any department (other than the Department of the Interior) or the head of any other agency or instrumentality may be delegated to the Secretary of the Interior with respect to any land managed by such other Secretary or agency head, and in any such case, the term “Federal land manager” means the Secretary of the Interior.

(3) The term “public lands” means— (A) lands which are owned and administered by the United States as part of— (i) the national park system, (ii) the national wildlife refuge system, or (iii) the national forest system; and (B) all other lands the fee title to which is held by the United States, other than lands on the Outer Continental Shelf and lands which are under the jurisdiction of the Smithsonian Institution.

(4) The term “Indian lands” means lands of Indian tribes, or Indian individuals, which are either held in trust by the United States or subject to a restriction against alienation imposed by the United States, except for any subsurface interests in lands not owned or controlled by an Indian tribe or an Indian individual.

(5) The term “Indian tribe” means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 1601 et seq.).

(6) The term “person” means an individual, corporation, partnership, trust, institution, association, or any other private entity or any officer, employee, agent, department, or instrumentality of the United States, of any Indian tribe, or of any State or political subdivision thereof.

(7) The term “State” means any of the fifty States, the District of Columbia, Puerto Rico, Guam, and the Virgin Islands.


Section 6 - 16 U.S.C. 470ee, Prohibited acts and criminal penalties

16 U.S.C. 470 ee(a), Unauthorized excavation, removal, damage, alternation, or defacement of archaeological resources.

(a) No person may excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under section 4 of this Act, a permit referred to in section 4(h)(2) of this Act, or the exemption contained in section 4(g)(1) of this Act.

16 U.S.C. 470ee(b), Trafficking in archaeological resources: Federal law

(b) No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archaeological resource if such resource was excavated or removed from public lands or Indian lands in violation of— (1) the prohibition contained in subsection (a) of this section, or (2) any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.


16 U.S.C. 470ee(c), Trafficking in illegal interstate or foreign commerce in archaeological resources: State or local law

(c) No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate of foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law.

16 U.S.C. 470ee(d), Penalties

(d) Any person who knowingly violates, or counsels, pro- cures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: Provided, however, That if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon con viction such person shall be fined not more than $100,000, or imprisoned not more than five years, or both.