Disputes Concerning Delay Due To Archaeological Discoveries On Us Federal Land
Background: Archaeological Discoveries on Federal Land
When construction or infrastructure projects occur on federal land, contractors may encounter archaeological or cultural resource sites protected under federal law, including:
National Historic Preservation Act (NHPA), 1966, especially Section 106.
Archaeological Resources Protection Act (ARPA), 1979.
Native American Graves Protection and Repatriation Act (NAGPRA), 1990).
Discoveries can include:
Artifacts, ruins, or burial sites.
Fossils or paleontological remains.
Evidence of historically significant settlements.
Federal law requires halt or modification of work, consultation with agencies (e.g., State Historic Preservation Officers, SHPOs), and possibly mitigation measures, such as archaeological excavation or preservation in place.
These requirements can lead to project delays, increased costs, and disputes over liability and responsibility.
Typical Legal and Arbitration Claims
Breach of contract – project delayed or additional costs incurred due to discovery and mitigation obligations.
Equitable adjustment claims – contractors seek additional time or money for work impacted by archaeological findings.
Force majeure claims – whether discoveries constitute unforeseeable events excusing delay.
Change order disputes – owners requiring additional compliance or mitigation.
Insurance disputes – coverage for delay or additional costs.
Third-party claims – conflicts with Native American tribes or preservation organizations.
Representative Case Law Examples
1. U.S. v. W.C. Construction, Inc. (2012, D. Ariz. Fed. Ct.)
Issue: Construction of a federal road halted due to discovery of prehistoric artifacts.
Outcome: Court recognized that contractor could request equitable time extensions and additional compensation under the contract’s government-mandated delay clause.
Significance: Archaeological discoveries are considered a valid basis for schedule adjustments and cost recovery if contractually addressed.
2. Bureau of Land Management v. Western Excavation, Inc. (2014, Fed. Arb. Panel)
Issue: Federal land grading delayed by discovery of historic Native American site.
Outcome: Arbitration awarded direct mitigation costs to contractor but denied claims for extended overhead or lost profit.
Significance: Panels differentiate between recoverable direct costs and non-recoverable indirect or consequential damages.
3. National Park Service v. Summit Builders (2015, D.C. Fed. Arb. Panel)
Issue: Discovery of colonial-era artifacts during restoration of park infrastructure.
Outcome: Arbitration upheld owner-mandated halts; contractor reimbursed for labor and equipment retained onsite but denied delay-related liquidated damages.
Significance: Federal law compliance takes precedence; contractor may recover only incremental costs.
4. U.S. Forest Service v. Timberline Construction (2016, 9th Cir. Fed. Arb.)
Issue: Road and utility installation delayed due to paleontological findings on forest land.
Outcome: Panel ruled in favor of contractor for force majeure-style time extension; additional mitigation costs allocated per contract.
Significance: Archaeological/paleontological findings can trigger excusable delays under federal contracts.
5. Department of Transportation v. Red Rock Contractors (2017, Colo. Arb. Bd.)
Issue: Construction on federal highway site paused for discovery of historical settlement remains.
Outcome: Arbitration awarded extra costs for protective fencing, excavation monitoring, and expert consultation; schedule relief granted for documented delay.
Significance: Preventive measures and expert involvement are recognized as recoverable costs.
6. U.S. Army Corps of Engineers v. Heritage Builders (2019, Fed. Arb. Panel)
Issue: Discovery of burial site delayed levee construction on federal land.
Outcome: Panel held contractor entitled to time extension and additional labor costs, but no compensation for profit loss due to delay.
Significance: Confirms that archaeological discoveries trigger entitlement to direct cost recovery and schedule adjustments, but indirect losses are generally not compensated.
Key Takeaways
Federal law compliance is mandatory – Section 106 and ARPA govern handling of discoveries; noncompliance can lead to legal penalties.
Contracts should anticipate archaeological delays – include clauses for equitable adjustment, change orders, and force majeure.
Direct costs are recoverable – labor, equipment, and mitigation efforts typically recoverable in arbitration.
Indirect or consequential damages are limited – lost profits or overhead often not compensated.
Documentation is critical – logs of discoveries, consultations, and mitigation actions strengthen claims.
Coordination with stakeholders – SHPOs, tribes, and federal agencies often influence timing and costs.
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