The Ninth Circuit vacated the district court's conviction of Ian Martin Lynch for knowingly removing an archaeological resource from public land in violation of the Archaeological Resources Protection Act (ARPA)[1] and remanded the case for further proceedings. The court held that to convict Lynch under the ARPA, the government had to show that Lynch knew or had reason to know that he was removing an "archaeological resource."

In 1997, Lynch discovered and removed a partially buried human skull while deer hunting with friends on an uninhabited island in southeast Alaska. Agents of the United States Forest Service interviewed Lynch after being informed of his actions. Lynch turned over the skull at the interview and directed agents to the site where he found it. After a Forest Service archeologist could not readily determine the age of the skull, the agency used carbon dating to conclude that the skull was at least 1400 years old.

Lynch was indicted for a felony violation of the ARPA. The ARPA prohibits the removal of archeological resources from public lands,[2] and provides that anyone who "knowingly violates" the statute will "be fined not more than $10,000 or imprisoned for not more than one year or both."[3] At trial, Lynch entered a conditional plea of guilty after the district court informed him that "the government would not have to prove that [he] knew that his act was against the law nor that the skull he removed from government land was an archeological resource."[4] Lynch appealed the district court's holding that his actions were malum in se,[5] meaning that the government only had to show that he knew he was removing a human skull, in order to secure a felony conviction. On appeal, the Ninth Circuit held that when charging a defendant with criminal liability for knowingly violating the ARPA, the government must prove "that the defendant knew more than that the object he removed was a human skull."[6]

In the Ninth Circuit's analysis, the court first rejected Lynch's argument that the government must prove specific intent--that he knew he was violating the ARPA--to indict him. In contrast, the government asserted that because the ARPA uses "knowingly" instead of "willfully," the statute does not require that a defendant know his actions are illegal. The court surveyed cases with similar facts and rejected Lynch's argument. Prior opinions indicated that a defendant must be aware that he is performing a particular act, but not that the act has been criminalized.[7] In addition, the court determined that the legislative history seemed to support rejecting Lynch's argument. The Ninth Circuit held that a felony conviction under the ARPA requires the government to prove that the defendant knew, or had reason to know, that the item taken was an "archeological resource." The court concluded that picking up a skull is not malum in se in every case, nor does it always "involve the public welfare."[8]

The court decided that in most cases a "knowing" violation means that the defendant must "know the facts that make his conduct illegal."[9] The Ninth Circuit compared Lynch's conviction under the ARPA with the Supreme Court's decision in Staples v. United States.[10] In Staples, the Supreme Court held that the government must prove that "the defendant knew the weapon he possessed had characteristics that brought it within the statutory definition of a machine gun in order to be convicted for failing to register a machine gun."[11] Similarly, the Ninth Circuit decided that to convict Lynch, the government must show that Lynch knew the skull he removed had characteristics that brought it within the statutory definition of an archeological resource. The appellate court determined that the concerns expressed by the Supreme Court in Staples were present in Lynch's case. The primary concern over the potential for harsh penalties "counsel[ed] against convicting an unwitting person of a felony when nobody knew until after a lengthy investigation that the [skull] taken was more than 100 years old . . . ."[12] Therefore, the Ninth Circuit read a knowledge requirement into the statute.

The court also decided the case was like Staples because it involved the widespread tradition of artifact collecting, similar to the widespread tradition of gun ownership that the Supreme Court found important in Staples. The government attempted to cast Lynch's conduct in a different light, arguing that Staples did not apply because grave robbing is not an accepted tradition. The court rejected this argument because the government failed to charge Lynch with grave robbing, and the record did not contain any evidence that Lynch knew or should have known the skull was in a grave.

The Ninth Circuit also rejected the government's attempt to characterize the case as involving a "public welfare" offense. With public welfare offenses, the prosecution does not have to prove the state of mind of the defendant to secure a conviction. The court determined that the public welfare offense cases offered by the government dealt with conduct that is inherently more felonious than removing a skull, such as arson, assault, and breaking into a federal computer.[13] Finally, the court distinguished a previous Ninth Circuit opinion that addressed knowing violations under the Endangered Species Act (ESA).[14] In United States v. McKittrick,[15] the court held that to violate regulations under the ESA, a defendant does not have to know that he killed a listed endangered species. The Ninth Circuit distinguished McKittrick in two ways. First, the legislative intent of the ESA indicated the statute was meant to halt species extinction regardless of the cost, while the legislative history of the ARPA suggests that Congress was worried about "penalizing archeologically naive visitors to public lands."[16] In addition, McKittrick involved misdemeanor penalties and Lynch faced felony penalties. Thus, the Ninth Circuit vacated Lynch's conviction and remanded for further proceedings.