MDHTALK - Article: Law-Alternate View on the Law by Tom Tanner

Author: Tom Tanner, Email

I have been metal detecting since about the 9th grade (mid 1970s). Started with a used Whites 66TR (circa late 1960's all-metal TR technology). Started hunting for beach erosion in 1980. After some serious storms in 1982/83, that I only incidentally "stumbled" on to (but not really knowing what the heck I was doing), I set my mind to figuring out just when and where erosion happens.

Was the club president of a local metal detecting club from the late 1980s till the mid 1990s. Live in Salinas, CA and am self-employed with a street sweeper company. Currently hunting with Minelab Explorer (for beach and land) and Tesoro Silver Sabre (for certain land sites).

Alternative view regarding legalities issues:

This website contains laws, pertaining to state's metal detecting regulations. These would be for state level land, and have no bearing on county level regulated lands, city level regulated lands, and of course private land.

An often-cited point in the metal detecting “code of ethics” is the following:

"I WILL CHECK FEDERAL, STATE, COUNTY AND LOCAL LAWS BEFORE SEARCHING. IT IS MY RESPONSIBILITY TO KNOW and UNDERSTAND THE LAW "

There's a bit of psychology that can be factored in to the state level answers. It comes from knowing a bit of how these type lists came into being: An early attempt at such a resource compendium came when a fellow named R. W. Grim wrote a book called "Treasure Laws of the United States" back in the early 1990s. The way he came up with his book, was to write a form letter to all 50 states park's dept's headquarters, asking something to the effect: "What laws do you have regarding the use of metal detectors in your state parks?" When he got all the reply letters back, he merely printed them (letterhead and all) in his alphabetized book. Theoretically, a reader could turn to any state he wanted, and if hassled, have the proof right there (from the state's own headquarters) to show anyone who questioned them. This sounds reasonable. After all, who better to ask, then the powers-that-be themselves, right? And, you can't be too safe, right?

But a curious thing happened when this book came out: In some of the more dire sounding states (with serious curtailments, or outright "no's") there were many state parks that had been detected routinely, for as long as any remembered, without any problems. That is to say, they had simply been detected since the early days of the hobby, and it never dawned on anyone you needed to ask, to begin with. And as time went on, why would anyone question that? On-site personnel had never paid mind to anyone detecting. Now all of the sudden this book is out, and existing hobbyists there are left scratching their heads.

I believe it is a result of the following psychology: If you were the deskbound bureaucrat tasked with answering such an inquiry, what would be the safe answer? Because think of it: No doubt, in any given state, there are bound to be some admittedly historically sensitive monuments, right? And others (innocuous beaches, sandboxes, non-historically themed parks, picnic sites, etc..) may not be historically sensitive. But you certainly can't answer such an inquiry by saying "yes at these 24, but no at these 5" and "yes on the east side of this one, but not by the cabin on the lake", etc... etc.... So a much easier answer was either:

1) "No" (To which they could merely morph something else to apply, like: "no collecting" or "don't disturb the vegetation" or "cultural resources" or whatever)

2) "Inquire at each kiosk you come to"

In either case, you had many state parks, in such above examples, where there had never been a problem prior to this. Does this mean, in the case of answer #1, that a present hobbyist there is now somehow law-less? It would be like if there were a "no collecting law" to prohibit people from backing up their pickups and loading up rock, removing plants to put in their own gardens, etc... We can all understand those laws. But if your grade-school daughter goes to pick up a pretty stone off the beach for her grade-school art project, is she in violation? Technically I suppose. If you were to ask a ranger "can she take this pretty rock home?" they would be obliged to give you the technical answer. Does it mean they ever actually cared, or would have paid any mind to someone picking up a rock? Probably not. The same was probably true of the Grim book answers: a "technical" answer was given (After all, you asked), when for a lot of areas, no one really cared (unless you were tromping on a sensitive historic monument).

Or put on a micro-scale example; consider this following true example from the early 1980s: Upon moving to a new city, a fellow visited that town's metal detecting club meeting for the first time. As he watched the find-of-the-month contest entries, he listened as one person held up an old coin, and said "found in such & such park". The newcomer raised his hand and objected: "I thought metal detecting was illegal in the city parks here?" A few old-timers turned around, looked at him, and asked "since when?" He went on to tell how ..... upon moving to town, had gone in to city hall .... and asked! Someone there had told him "no". Well this caused confusion amongst the other club members (some of whom had been detecting in this town since the 1960s & 70s). It had never dawned on any of them that you needed to "ask", or that there was any problem, to begin with. No one had ever been bothered (assuming you weren't being a nuisance, or leaving a mess, etc...). Debate ensued amongst the meeting attendees: Several persons took this warning to heart, and felt that yes, indeed, this means you can't detect the city parks (doesn't seem like you can argue with this new fellow's answer straight from city hall!). Other persons in the room thought "nonsense, it's a public park; no ones ever bothered me; why should I stop now? You probably just got someone who's image was geeks with shovels, but the reality is, no one cares"

The above city-level micro-example shows what can happen on a larger state-wide example. Ie.: sometimes "no one cares ...... UNTIL you ask". And as more and more people ask (like as in the example of Grim's book), the more and more dire sounding "no's" came out, or the more and more side-issues got morphed to apply to us (ie.: cultural heritage, collecting, etc...). Why? Because you asked, and they must address "your pressing question".

And then an interesting phenomenon began to occur: The more and more people asked (After all, we were told to "inquire at each kiosk") the more and more "no's" started to be handed out, enforced, or downright legislated! Utah, for example, who at one time had nothing specific regarding metal detecting, eventually wrote in to their state laws an enforcement level "clarification" on the subject of metal detecting. The introductory paragraph to the wording/clarifications was very telling. It said something to the effect: "Due to numerous inquiries the state park's dept. receives each year, regarding the use of metal detectors in our state parks, this will serve to clarify the department's stance on the issue ....." And it went on to cite severe restrictions (drawn/morphed from existing cultural heritage wording, but apparently up till then, had not been an issue). Do you see from the introduction to such a memo, that the very reason for this "edict", was the ".... numerous inquiries"?

What happens next, as more and more people ask, and more and more rank-&-file rangers are made aware of some supposed evil on the part of metal detecting, is that more and more bootings started occurring (by the same ranger who probably would never have paid you any mind previously). It was like a self-fulfilling prophecy, and a vicious circle. The more and more requests to leave occur, and the more stories that circulate about legal hassles, the more and more people go asking even more (just to be safe). Thus leading to more and more "no's", and the vicious circle continues.

The FMDAC's own "Code of Ethics" contains the following:

"I WILL CHECK FEDERAL, STATE, COUNTY AND LOCAL LAWS BEFORE SEARCHING. IT IS MY RESPONSIBILITY TO KNOW and UNDERSTAND THE LAW "

A lot of people have understood, or interpreted that, to mean that they should go in to any city or county where they live, and ask permission (or at least ask "are there any laws that prohibit metal detecting?"). Some have even suggested getting the answer in writing, from whomever you're talking to "just to be safe". But there's a whole boat-load of psychology wrapped up in this: The mere fact that anyone has come in to them asking if they can do a certain activity, merely pre-assumes that something is inherently wrong, or evil, or damaging about this, that they had to ask ... TO BEGIN WITH. So with that inference in mind, you can see how it's easy for a desk-clerk to simply say "no". Would you have asked to fly a Frisbee? skip stones on the pond? fly a kite? etc... And if the person asking at the desk gets a "no", he might object and say "but where is that written?" (as if to put the burden on them, to produce an actual written law/rule). But this can backfire: they can merely say "because we think you'll hurt the sprinklers", or "because we forbid collecting" or some other such nonsense. And if you push the issue further in appeals, you may merely get a rule written (to "address your pressing issue") for future sakes. Mind you, this might all be happening in a place where, quite frankly, no one would ever have cared or noticed you if you had just gone!

So I am of the opinion that the best method, if you are skittish about laws or rules, is to look them up yourself. Don't go asking a bureaucrat, police, or ranger: "can I?" but rather, look it up yourself to see if there is anything that addresses metal detecting in your city or county-level laws. City and county websites are usually on-line. Do a key-word search under "metal detecting". If it is silent on the issue, then so be it! Another way is that the city or county codes are usually available on their offices front desk, for public viewing. If there is nothing specifically forbidding metal detecting, then consider yourself ok, unless told otherwise.

But be aware that this does not guarantee that a busy-body might not bother you in the field. Anyone can make assumptions that you may leave marks, or be collecting city riches for your own benefit, etc.... This can even be true in states where Grim's book (or any city's "permits" or anyone who has ever gotten a "yes") says you CAN metal detect. That is to say, even those "yes's" are subject to you not making a mess, turning in valuables to lost & found, and other such issues. There are many stories of people who got a "yes", only to still be hassled in the field by a rank & file gardener or cop. When the hobbyist proudly cites their "permission", they get it quickly yanked, as soon as the busy-body gets on the phone, calls city hall, and says "well I don't like it, and I think he's going to the hurt the grass, etc....".

So to this point, a little discretion is involved: It is not a good idea to make yourself a big target, to begin with. Since anyone can gripe about anything, and "image is everything", yet "reality means nothing", it's better to go at off-times, so as to keep a wider berth from busy-bodies and gripers. Ie.: don't go waltzing over people's beach blankets, leaving holes, or hunt in the middle of an archaeologist convention going on at the park you're at. We're unfortunately in an odd hobby. It "draws the eye" to see a guy swinging a wierd geiger-counter, right? And then human nature sets in and people wonder "just what is that guy doing?" "Is he going to harm anything?" "Is that allowed?" etc... So you see that it is sometimes best to pick low-traffic times, to simply be less of an issue, to begin with. If you're not running afoul of any laws (ie.: it is silent on the issue wherever you're at), then the best way to have it remain that way, is by not letting it become an issue. Pick low traffic times, etc....

We can not change the already existing laws, but we can lessen the enacting of future laws and more enforcement, by reversing this "must ask permission" mentality. If it's not specifically disallowed, then consider yourself ok. Let's stop the vicious circle of more enactments and enforcements, via this mentality that we must be somehow sanctioned.

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