UNITED STATES OF AMERICA, Plаintiff-Appellee, v. EARL K. SHUMWAY, Defendant Appellant.
Nos. 95-4201 & 96-4000
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
MAY 6 1997
PUBLISH; Appeal from the United States District Court for the District of Utah (D.C. Nos. 94-CR-185 & 95-CR-97); PATRICK FISHER Clerk
G. Fred Metos (Joseph C. Fratto, Jr. with him on the briefs), Salt Lake City, Utah, for Defendant-Appellant.
96-4000 submitted on the briefs:*
Before SEYMOUR, BRORBY and KELLY, Circuit Judges.
BRORBY, Circuit Judge.
Appellant, Mr. Earl K. Shumway, appeals his conviction and sentence entered in the United States District Court for the District of Utah. We affirm in part, reverse in part, and remand for resentencing.
I. BACKGROUND
On November 16, 1994, Mr. Shumway was charged in a three-count indictment alleging: 1) violation of the Archaeological Resources Protection Act,
On June 1, 1995, Mr. Shumway was charged in a four-count indictment. Counts one and three alleged violations of the Archaeological Resources Protection Act,
In a consolidated sentencing, the district court sentenced Mr. Shumway to seventy-eight months in prison, a three-year term of supervised
II. FACTS
Mr. Shumway‘s jury conviction stemmed from his unauthorized excavation of two Anasazi2 archeological sites: Dop-Ki Cave and Horse Rock Ruin. Dop-Ki Cave is located on federal lands in Canyonlands National Park, and Horse Rock Ruin, also known as Cliffdwellers’ Pasture or Jack‘s Pasture, is located on federal lands near Allen Canyon, Manti-LaSal National Forest.
At trial, the government introduced evidence to show Mr. Shumway met a helicopter mechanic, Michael Miller, at a lounge and pool hall in Utah and developed a sociаl relationship with him. The two eventually began discussing Mr. Shumway‘s experience in finding archeological artifacts and his experience in making large amounts of money selling those artifacts. Mr. Shumway asked Mr. Miller if he could find a helicopter to fly them around to find archeological artifacts.
Enticed by the prospects of money and Mr.
Once airborne, Mr. Shumway directed Mr. Ruhl to fly to a particular archaeological site southeast of Moab, but Mr. Shumway had trоuble locating the site. Unable to find the particular location, the group eventually landed at Dop-Ki Cave in Canyonlands National Park. Mr. Shumway and Mr. Miller began digging in the area. While digging in the cave, Mr. Miller discovered the human remains of an infant wrapped in a burial blanket. Mr. Shumway explained to Mr. Miller he had found a burial site. Mr. Shumway then took over the digging. Mr. Shumway fully excavated the infant remains and
The group then attempted, a second time, to find Mr. Shumway‘s first intended site. Unable to locate it, Mr. Shumway directed Mr. Ruhl to land at Horse Rock Ruin. Mr. Miller testified that based on the directions Mr. Shumway had given, and based on his detailed knowledge of the site, it seemed Mr. Shumway had been to the Horse Rock Ruin site before. The next morning, after spending the night at the site, Mr. Shumway found sandals and a sleeping mat during the dig at the site.
In 1986, Mr. Shumway testified in court regarding his conduct at Horse Rock Ruin in 1984, the same site referred to in counts three and four of the 1995 indictment. The government attempted to admit evidence of Mr. Shumway‘s prior illegal activities at Horse Rock Ruin to establish identity, knowledge and intent, pursuant to
Specifically, the district court admitted the following evidence: 1) a certified transcript of Mr. Shumway‘s sworn colloquy with the court in the 1986 case, redacted to include only admissions concerning his 1984 conduct at Horse Rock Ruin; 2) a redacted portion of a videotape of Mr. Shumway examining several artifacts he stated he excavated and removed from Horse Rock Ruin in 1984; 3) the 1986 testimony of United States Forest Serviсe Special Agent Craig Endicott summarizing Mr. Shumway‘s statements about removing and selling artifacts from the Horse Rock Ruin site in 1984; 4) several photographs of artifacts Mr. Shumway removed from Horse Rock Ruin in 1984; and 5) a certified transcript of Mr. Shumway‘s sworn testimony in United States v. Black, No. CR 67-97 (D. Utah), a case related to the illegal sale of artifacts taken from the Horse Rock Ruin site in 1984. During the motion in limine hearing, Mr. Shumway‘s counsel informed the court his defense at trial would be that Mr. Shumway was not the person who committed the offenses. The district court therefore deemed this evidence admissible, yet limited the evidence‘s admissibility to the purpose of establishing Mr. Shumway‘s identity.
During trial, the government requested the district court to reconsider and broaden its previous ruling to allow the 404(b) evidence to prove knowledge and intent in addition to identity. The court determined that absent a stipulation by Mr. Shumway that identity was the only issue involved, the 404(b) evidence also would be admitted to prove knowlеdge and intent. Accordingly, the court instructed the jury as to the limited purpose of the 404(b) evidence to establish intent, knowledge and identity.
After the jury convicted Mr. Shumway on all four counts, the district court consolidated for purposes of sentencing the 1994 case that resulted in Mr. Shumway‘s guilty plea. At sentencing, the court enhanced Mr. Shumway‘s base offense level as follows: two points for the vulnerable victim adjustment, pursuant to
On consolidated appeal we consider five issues: 1) whether the district court erred in admitting evidence of Mr. Shumway‘s prior acts at Horse Rock Ruin pursuant to
III. 404(b) Evidence
Mr. Shumway argues the district court erred in admitting the evidence regarding his 1984 acts in Horse Rock Ruin for purposes of identity, knowledge and intent. Specifically, Mr. Shumway argues the 1984 evidence lacked the “signature quality” necessary to show identity and was highly prejudicial to Mr. Shumway.
We review the district court‘s admission of evidence under
Under
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ....
In determining whether the admission of 404(b) evidence was proper, we apply a four-part test, which requires the following: 1) the evidence was offered for a proper purpose; 2) the evidence was relevant; 3) the trial court properly determined under
A. Proper Purpose and Relevance
First, the government offered, and the district court admitted, the evidence of Mr. Shumway‘s prior activities at Horse Rock Ruin for proper purposes under
1. Relevance--Identity
As stated, at a pretrial hearing on Mr. Shumway‘s motion in limine to exclude the evidence, Mr. Shumway‘s counsel stated his main defense would be that Mr. Shumway was not the person involved. After the hearing, the district court determined it would allow the prior evidence only to show identity. The court held, and we agree, the evidence of Mr. Shumway‘s 1984 prior activities at Horse Rock Ruin, the exact same site as that specified in two counts of the 1995 indictment, made more likely the inference the same person looted the same site on both occasions.
Mr. Shumway argues, however, the prior act evidence was not relevant under 404(b) because the prior act lacked the “signature quality” necessary to show identity. Specifically, Mr. Shumway argues the 1984 act was not sufficiently similar to the acts at issue in the present case to be probative of identity because the methods used to excavate the sites were not sufficiently similar. Additionally,
We have held that to prove identity, evidence of prior illegal acts need not be identical to the crime charged, so long as, based on a “totality of the comparison,” the acts share enough elements to constitute a “signature quality.” United States v. Patterson, 20 F.3d 809, 813 (10th Cir.), cert. denied, 513 U.S. 841 (1994); United States v. Ingraham, 832 F.2d 229, 233 (1st Cir. 1987); United States v. Gutierrez, 696 F.2d 753, 754 (10th Cir. 1982), cert. denied, 461 U.S. 909 and 461 U.S. 910 (1983).
Elements relevant to a “signature quality” determination include the following: geographic location, United States v. Porter, 881 F.2d 878, 887 (10th Cir. 1989) (fact that all crimes took place in small rural Kansas communities relevant to “signature quality” determination); United States v. Stubbins, 887 F.2d 42, 44 (11th Cir. 1989) (that both offenses occurred at the same premises was probative of identity); the unusual quality of the crime, Patterson, 20 F.3d at 813 (fact that hijacking is an unusual crime was a relevant factor in “signature quality” determination); the skill necessary to commit the acts, United States v. Barrett, 539 F.2d 244, 248 (1st Cir. 1976) (ability to bypass burglar alarm a “distinctive feature” of crime); United States v. Garcia, 880 F.2d 1277, 1278 (11th Cir. 1989) (defendant‘s skill in forging documents relevant to show identity); or use of a distinctive device, United States v. Trenkler, 61 F.3d 45, 55 (1st Cir. 1995) (defendant‘s prior use of distinctive remote-control car bombs relevant in determining whether same person built both bombs); United States v. Andrini, 685 F.2d 1094, 1097 (9th Cir. 1982) (defendant‘s description of distinctive incendiary devise used in crime “sufficiently distinctive to show identity.“).
These enumerated elements relevant to a “signature quality” determination are not inclusive. Furthermore, the weight to be given to any one element and the number of elements necessary to constitute a “signature” are highly dependent on the elements’ uniqueness in the context of a particular case. In other words, a few highly unique fаctors may constitute a “signature,” while a number of lesser unique factors “although insufficient to generate a strong inference of identity if considered separately, may be of significant probative value when considered together.” United States v. Myers, 550 F.2d 1036, 1045 (5th Cir. 1977).
It is by this reasoning we are guided in making our “signature quality” determination. Here, the evidence of Mr. Shumway‘s prior activities at Horse Rock Ruin and the activities charged at trial share at least two distinctive features such that they demonstrate a “signature quality“: the unique geographical location, and the skill and specialized knowledge necessary to commit both acts. See United States v. Stubbins, 887 F.2d 42 (11th Cir.), cert. denied, 493 U.S. 940 (1989); United States v. Barrett, 539 F.2d 244, 248 (1st Cir. 1976).
First, Mr. Shumway visited Horse Rock Ruin to loot its contents once before. In Stubbins, the defendant was tried for conspiracy and distribution of crack cocaine. His main defense at trial was mistaken identity. 887 F.2d at 43. The prosecution attempted to admit evidence of a prior similar drug sale that took place at the same address as the location of the offense at issue during trial. Id. The court held the prior acts evidence was admissible and relevant to show identity under
We find Barrett‘s reasoning persuasive here. The existence of 22,000 sites in San Juan County alone, the remoteness of the location, the difficulty of access, and the varying concentration of artifacts, all suggest the person who committed both the prior act and the charged acts was one possessing distinctive, unique and unusual skills necessary to locate and excavate the artifacts. Extensive testimony was introduced showing that Mr. Shumway‘s statements and actions demonstrated substantial specialized knowledge and prior visits to the site. Mr. Miller testified Mr. Shumway had detailed knowledge as to how to get to the site and had a high degree of familiarity with the Horse Rock Ruin site. Particularly, Mr. Miller testified Mr. Shumway knew precisely where at the Horse Rock Ruin site to find artifacts. The prior acts evidence Mr. Shumway had looted the Horse Rock Ruin site once before therefore is probative to show he was one with specialized skill and knowledge sufficient to commit the acts charged. The fact Mr. Shumway not only looted before, but looted the Horse Rock Ruin once before, shows he had knowledge of the site‘s location and means of access, as well as the artifacts to be found there.
Therefore, we hold the two features shared by the prior and charged acts -- location and skill -- are sufficient under the circumstances of this case to constitute a “signature quality” such that commission of the prior act was relevant to show identity.
Mr. Shumway also argues because the first occurrence at Horse Rock Ruin was seven years prior to the second, it was not probative of identity. However, “‘[t]here is no absolute rule regarding the number of years that can separate offenses. Rather, the court applies a reasonableness standard and examines the facts and circumstances of each case.‘” United States v. Franklin, 704 F.2d 1183, 1189 (10th Cir.) (quoting United States v. Engleman, 648 F.2d 473, 479 (8th Cir. 1981)), cert. denied, 464 U.S. 845 (1983). Here, the district court considered the seven-year time span when deciding whether the evidence was probative; Mr. Shumway fails to convince us the district court abused its discretion in reaching its conclusion the evidence was probative as to identity.
2. Relevance--Intent and Knowledge
As stated, the district court initially allowed the prior acts evidence only to show identity. However, during trial, the court reconsidered its decision and admitted the evidence also to show knowledge and intent. The district court held since knowledge and intent were required elements, and since Mr. Shumway had not stipulated that the only contested issue was identity, the 404(b) evidence was admissible to show knowledge and intent as well as identity. We agree.
The 404(b) evidence was relevant to show intent. Mr. Shumway was charged with violating
The 404(b) evidence was also relevant to show “knowledge” as to the charged violation of
B. Probative Value Versus Prejudice
Mr. Shumway argues admission of the 404(b) evidence was highly prejudicial under
C. Limiting Instruction
Huddleston‘s fourth prong requires the district court, upon request, to instruct the jury that the 404(b) evidence is to be considered only for the proper purpose for which it was admitted. 485 U.S. at 691-92. Here, the district court properly gave such a limiting instruction to the jury that the 404(b) evidence was to be considered only for the purposes of intent, knowledge and identity. Having therefore determined the admission of the 404(b) evidence satisfied every element of Huddleston, 485 U.S. at 691-92, we hold the district court did not abuse its discretion in admitting the prior acts evidence under
IV. SENTENCING--Base Level Enhancements
A. Vulnerable Victim
At sentencing, the district court enhanced Mr. Shumway‘s base offense level by two points under
If the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels.
We must now decide whether the human skeleton of an Anasazi infant is a “vulnerable victim” for purposes of
Normally, a district court‘s determination of a “vulnerable victim” for purposes of
We are convinced that to interpret “vulnerable victim” to include skeletal remains would stretch the imagination, and would render application of
The status of “vulnerable victim” hinges on the idea that some characteristic renders a victim “particularly susceptible” to the criminal conduct. In other words, the “vulnerable victim” is someone who is unable to protect himself or herself from criminal conduct, and is therefore in need of greater societal protection than the average citizen. United States v. Brunson, 54 F.3d 673, 676 (10th Cir.), cert. denied, 116 S. Ct. 397 (1995). Skeletons certainly are completely unable to defend against criminal conduct. However, to illustrate the absurdity of applying the “vulnerable victim” status to a skeleton, consider for example, a pile of cremated remains, or a pile of dirt that was once a pile of bones; if skeletal remains are “vulnerable victims,” certainly, then, these types of remains also should qualify. These types of human remains are undoubtably no more able to guard against criminal harm than a buried infant skeleton, yet can they qualify as a victim? Our answer is an unqualified no. These examples illustrate the untenable results application of the Guidelines to skeletal remains would have, and this we refuse to justify.
In support of the proposition the infant skeleton qualifies as a “vulnerable victim” under
On appeal, the Fifth Circuit held the district court did not err in applying either provision to the defendant‘s sentencing calculation. Id. at 608, 612. However, the circuit court did not specifically address the defendant‘s argument that the body could nоt be a “victim.” Id. at 604. Rather, the circuit court focused on rejecting the defendant‘s argument the owner of the credit card could not be a “victim” for purposes of the Guidelines if he was not a “victim” of the crime of conviction. Id. at 605, 608-09. The court held the Guidelines required no such nexus --
The phrase “to the victim” appears to modify the term “degrading,” making the point that the Sentencing Commission was not concerned about conduct that might be degrading to the offender. By contrast, the terms “heinous,” “cruel,” or “brutal” conduct need no such clarification.
Id. at 894 n.8. The Quintero analysis does not apply here. It is true the Guideline‘s “vulnerable victim” provision does, as do all the provisions, deal generally with the offender‘s conduct; the evident purpose of the guideline is “to punish more severely conduct that is morally more culpable and to protect such victims by adding more deterrence.” United States v. Gill, 99 F.3d 484, 488 (1st Cir. 1996). However, unlike the “extreme conduct” provision, which focuses on the nature of the offender‘s conduct, the “vulnеrable victim” enhancement focuses heavily on the characteristics of the crime‘s victim. This, we find, is a compelling distinction, for in provisions such as the
For all these reasons, we hold the skeletal remains in this case could not constitute a “vulnerable victim” for purposes of sentencing enhancement under
B. Calculation of Loss
Mr. Shumway argues the district court erred in its method оf calculating loss. On appeal, while we review the district court‘s factual findings for clear error, we review de novo questions of what factors the district court may consider in assessing loss under the Guidelines. United States v. Williams, 50 F.3d 863, 864 (10th Cir. 1995).
The district court applied
Application note 2 of
During Mr. Shumway‘s trial, two archaeologists testified as to both “archaeological value” and “cost of restoration and repair,” as determined under
Mr. Shumway argues the court should have relied solely on the cost of repairs to the sites and the fair market value of the artifacts taken to calculate a loss of $9,122. Mr. Shumway argues the court‘s method of calculation was not one contemplated by the Guidelines and resulted in an incorrect standard of measure. We disagree.
For purposes of determining an appropriate offense level under the Guidelines, “loss” is not simply intended to be a measure of net monetary damage. “Loss” also serves to “gauge the severity of a particular offense.” United States v. Lara, 956 F.2d 994, 999 (10th Cir. 1992). Here, the district court quoted part of
Congress enacted the Archaeological Resources Protection Act to ensure for the present and future benefit of the American people, irreplaceable aspects of Native American history and culture.
C. Obstruction of Justice
Mr. Shumway argues the district court erred in enhancing his offense level for obstruction of justice pursuant to
Under the Guidеlines, the district court must enhance the defendant‘s offense level by two “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense.”
The district court enhanced Mr. Shumway‘s offense level by two for obstruction of justice after finding Mr. Shumway committed perjury during the hearing in which he pleaded guilty to the 1994 three-count indictment. Specifically, the district court found Mr. Shumway perjured himself by testifying that his codefendant in the 1994 case, Mr. Verchick, did not assist him in any digging, and did not go into the alcoves at issue with him. Mr. Verchick later pleaded guilty to the charges against him and testified he entered the alcoves with Mr. Shumway. The district court found, therefore, Mr. Shumway had committed perjury and the two-level enhanсement pursuant to
Mr. Shumway argues the obstruction of justice enhancement was in error because the false statements were not “material” as defined by the Guidelines.8 Specifically, Mr. Shumway argues because his testimony did not specifically exculpate his codefendant, Mr. Shumway‘s false statements were not “material” for purposes of
In United States v. Bernaugh, 969 F.2d 858, 862 (10th Cir. 1992), we affirmed the district court‘s obstruction of justice enhancement where, during his guilty-plea hearing, the defendant made false statements regarding his
codefendant‘s illegal activities. We held the district court‘s obstruction of justice enhancement was proper because “the section 3C1.1 enhancement applies where a defendant attempts to obstruct justicе in a case closely related to his own, such as that of a codefendant.” Bernaugh, 969 F.2d at 861. The same is true here. Mr. Shumway made false statements regarding his codefendant‘s role in an apparent attempt to relieve his codefendant of criminal liability. Mr. Shumway argues that while his testimony regarding his codefendant was “less than forthcoming,” the testimony was not “materially” perjurious because Mr. Shumway did not provide a story that fully exculpated his codefendant. However, to sustain a
The presentence report assigned Mr. Shumway a criminal history category of III. Mr. Shumway‘s criminal history, combined with the enhanced offense level of 22, resulted in an applicable sentencing range under the Guidelines of 51 to 63 months. During sentencing, the district court relied on
Mr. Shumway argues the district court‘s upward departure was in error for three reasons: 1) the district court did not adequately articulate its reasons for departure; 2) the district court was unclear as to whether it considered factors already taken into account by the Guidelines; and 3) the departure was not reasonable.
On appeal, we review the district court‘s decision to depart from the Sentencing Guidelines for an abuse of discretion. United States v. Koon, 116 S. Ct. 2035, 2043 (1996); United States v. Contreras, 108 F.3d 1255, 1270 (10th Cir. 1997). A district court may depart from the applicable sentencing range if “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration” by the Guidelines.
We now turn to the question whether the district court abused its discretion in departing from the Guidelines. The presentence report documented Mr. Shumway‘s extensive past illegal conduct of looting archaeological sites. Part of this evidence included Mr. Shumway‘s own statements at a trial related to his 1984 illegal acts at Horse Rock Ruin. Specifically, Mr. Shumway stated under oath he had been digging artifacts from public lands since a young age and had looted archaeological sites “thousands of times.” Additionally, Mr. Shumway appeared in a videotaped documentary that focused on the looting of archaeological sites in San Juan County, Utah. In the documentary, Mr. Shumway discussed how low the chances were of an experienced looter being caught. The presentence report also summarized an article in whiсh Mr. Shumway was quoted as saying: “If the government can come down here and say we don‘t
The district court considered this information set out in the presentence report and found Mr. Shumway had looted “at least 100 other times” than those which resulted in convictions, and had “made a way of life out of pot hunting down there on government lands and apparently thought or may still think that he has the right to do this“. Additionally, the district court found “there‘s a strong likelihood he will commit other crimes.” Based on these findings, the district court treated Mr. Shumway as if he had one additional felony, and added three criminal history points, which resulted in a criminal history category of IV.
We conclude the district court did not abuse its discretion in departing from the Guidelines. The court relied on
Mr. Shumway‘s arguments the district court failed to articulate its reasons for departure, and that the district court may have applied factors already taken into account by the Guidelines do not convince us otherwise. The district court articulated the information it relied on in making its decision to depart; it is clear the district court did not rely on factors already taken into account by the Guidelines. Rather, the district court relied on
Mr. Shumway also argues the district court‘s departure was not reasonable. We disagree. In assessing whether the degree of departure was reasonable, we consider the district court‘s reasons for imposing the particular sentence together with factors such as: “the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.” White, 893 F.2d at 278;
The district court added three points to Mr. Shumway‘s criminal history level after analogizing Mr. Shumway‘s history to a defendant with one additional felony conviction. Such analogies are specifically provided for in
In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable. For example, if the court concludes that the defendant‘s criminal history category of III significantly under represents the seriousness of the defendant‘s criminal
history, and that the seriousness of the defendant‘s criminal history most closely resembles that of most defendants with Criminal History Category IV, the court should look to the guideline range specified for a defendant with Criminal History Category IV to guide its departure.
The district court closely followed this provision by adding the same number of criminal history points as if Mr. Shumway had one additional prior felony conviction.
The district court may use any “‘reasonable methodology hitched to the Sentencing Guidelines to justify the reasonableness of the departure,‘” which includes using extrapolation from or analogy to the Guidelines. United States v. Jackson, 921 F.2d 985, 991 (10th Cir. 1990) (quoting United States v. Harris, 907 F.2d 121, 124 (10th Cir. 1990)). Here, the district court was explicit in its method of departure. Additionally, the departure is consistent with the factors to be considered in imposing a sentence under
Accordingly, the district court is AFFIRMED in part and REVERSED in part, and we REMAND to the district court for resentencing in accordance with this opinion.
Notes
If the defendant‘s conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.
Mr. Shumway also makes the following two arguments the “vulnerable victim” enhancement was in error: the “vulnerable victim” enhancement was improper because there was no evidence Mr. Shumway “targeted” the victim, and the enhancement was improper because the skeletal remains did not constitute an “unusually vulnerable victim.” See, e.g., Hardesty, 105 F.3d at 560; Brunson, 54 F.3d at 677. Because we reverse the district court‘s application of the enhancement to Mr. Shumway‘s sentence on other grounds, we need not address these arguments.
Specifically,
§ 7.14 Determination of archaeological or commercial value and cost of restoration and repair
(a) Archaeological value. ... [T]he archaeological value of any archaeological resource involved in a violation of the prohibitions in § 7.4 ... shall be the value of the information associated with the archaeological resource. This value shall be appraised in terms of the costs of the retrieval of the scientific information which would have been obtainable prior to the violation. These costs may include, but need not be limited to, the cost of preparing a research design, conducting field work, carrying out laboratory analysis, and preparing report as would be necessary to realize the information potential.
...
(c) Cost of restoration and repair. ... [T]he cost of restoration and repair of archaeological resources damaged as a result of a violation of prohibitions or conditions ... shall be the sum of the costs already incurred for emergency and restoration or repair work, plus those costs projected to be necessary to complete restoration and repair ....
For purposes of