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One of the trenches dug at the Malheur National Wildlife Refuge during the 41-day occupation of the federal wildlife sanctuary in eastern Oregon last winter. (Archeologist Timothy W. Canaday's report)

The cost of repairing two trenches and a road, dug last winter on a part of the Malheur National Wildlife Refuge that's considered an archaeological site, was slightly more than $108,000, according to federal authorities.

Two of the seven defendants set for trial next month, Jake Ryan and Duane Ehmer, are accused of digging the trenches and charged with depredation of government property, considered a felony when damage and repair is more than $1,000.

Ryan and Ehmer want the court to restrict prosecutors from telling jurors about any archeologically significant sites that may have been threatened on the refuge or the government's funding of an archaeological exploration of the dirt moved and its cost to repair.

Defense lawyers argue the evidence is irrelevant and would be prejudicial. They also contend Ryan and Ehmer had no idea the location held any archaeological significance, and that's why they have not been charged with violations of the Archaeological Resources Protections Act.

The act prohibits excavation of such sites that a defendant knows to be an archaeological resource and the removal of objects without a permit.

"If the government does not have any evidence to demonstrate that the defendants intended to threaten the archaeological integrity of the MNWR, then it is not relevant whether or not that integrity was in fact threatened,'' wrote Jesse Merrithew, Ryan's defense lawyer. "Mr. Ryan had no knowledge, nor any reason to know that when he dug the trench next to the parking lot on a functioning government complex, there could be buried archaeological resources present, especially considering the parking lot and all the surrounding buildings had required considerable excavation when they were built.''

The FBI hired an expert to help assess the damage to the refuge headquarters and coordinate repair because federal agents suspected the digging of trenches at the refuge during its occupation may have violated the Archaeological Resources Protection Act.

Timothy W. Canaday, forest archaeologist and tribal coordinator for the Salmon-Challis National Forest in Salmon, Idaho, calculated the cost of repair at $108,172, according to his report.

The cost included stabilizing the trenches to allow a survey of any archaeological objects that may have been disturbed, field work to determine if any archaeological artifacts or Native American human remains were damaged, consultation with the Burns Paiute Tribe, preparation for a "cleansing and healing'' ceremony held by the tribe at the site, and the cleaning and replacing of soil that had been excavated, according to federal prosecutors.

To be guilty of depredation of government property, the defendants don't have to know the site disturbed was an archaeological resource, only that their conduct was unlawful.

According to Canaday's report, no human bones or associated Native American items were located in the damaged areas, except for a single human talus bone discovered next to the all-terrain vehicle trails area. The human bone was reburied in place.

Refuge archaeologist Carla Burnside testified during the trial last fall of Ammon Bundy and six co-defendants that no archeological artifacts were disturbed at the refuge. She also testified that the 187,000 acres of the refuge contained more than 400 prehistoric and historic sites. One encompasses the entire refuge headquarters.

Her testimony prompted defense lawyer Matthew Schindler to ask during trial whether the U.S. Fish and Wildlife Service built the refuge headquarters on top of an archeological site?

"Yes, before it was not legal to do that,'' Burnside responded.

After the 41-day occupation ended and a survey of the site was completed, Burns Paiute tribal elders were brought to the refuge to conduct a traditional healing and cleansing ceremony as part of the repair and restoration, Canaday's report said. Protective fencing was installed around the trenches, with tarps placed over them for the ceremonies, partly to preserve the area for examination by the defense teams in the case.

The trenches were ultimately filled in. Topsoil was spread over the them and the excavated road to the refuge bunkhouse. Native seeds and sagebrush plugs were planted for vegetation growth.

The cost of repairs to the archaeological site are relevant to support the underlying charge, prosecutors argue. They plan to call an expert witness to testify about the steps taken to repair the property.

Because of the archaeological nature of the sites, federal authorities needed to ensure significant repairs were done "beyond merely 'pushing the dirt back into the trench(es) and compacting it down using the equipment ... onsite,' '' as defendants suggest would have been more reasonable.

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian