Dealer Lawsuit Against the U.S. State Department to Continue

Yesterday, Peter Tompa, attorney, lobbyist and a former president of the Ancient Coin Collectors Guild (ACCG), gave an update on the status of the ACCG's lawsuit against the U.S. Department of State.

The American dealer lobby, which I term such because every leading officer is an active or former dealer (with the exception of Tompa, who acts as a lobbyist for organized ancient coin dealers) and most of its large financial backers are also dealerships and auction houses, is joined in its lawsuit by two other dealer organizations: the International Association of Professional Numismatists (IAPN) and the Professional Numismatists Guild (PNG). As many readers are aware, the ACCG and these other groups launched the suit in the fall of 2007, alleging a lack of transparency in the way that the State Department agreed to extend the Memorandum of Understanding (MOU) to coins of certain Cypriot type.

It was expected that the ACCG had every intention of pressing the lawsuit as far as they could since they hosted a "benefit auction" last year in order to raise funds "in opposition to State Department imposed import restrictions" (see discussion here, here, here, and here). Along with the progress report on the lawsuit, the ACCG has also announced the plan for another "benefit auction" in 2009 (note the heavy distortive and alarmist rhetoric used by Sayles that we have heard from him and the group before: see some discussions here, here, and here).

Two documents relevant to the ACCG's lawsuit are on its website: the progress report and a declaration from Jay Kislak, former chair of the Cultural Property Advisory Committee of the State Department. Curiously, Kislak's declaration all but explicitly states that CPAC did not recommend to extend the restrictions to coins. Therefore, it will be interesting to see what comes out in the end, although it remains unclear to me personally if the State Department must be bound by the recommendations of CPAC since it is an advisory committee and deliberations and decisions are no doubt often split considering archaeologists, museum specialists, and members of the trade serve simultaneously on the committee. On the other hand, CPAC members are meant to keep the activities of the committee confidential and so it appears that Mr. Kislak may have been sharing privleged information with the coin dealers the whole time - the same sorts of hidden activities the dealer lobby consistently accuses members of the State Department's Cultural Heritage Center of.

In any case, Mr. Tompa expects the court to rule on the release of further documents within the next six months. The ACCG has not shared the documents released thus far to outside parties, though its own interpretation of them has been relayed several times.

Other commentators on these developments include:

D.W.J. Gill, "Cyprus and the Coin Collectors: Yet Another Round," Looting Matters (27 April 2009)

P. Barford, "Leaky Old CPAC - Mystery Solved?," Portable Antiquity Collecting and Heritage Issues (27 April 2009).

P. Barford, "'ACCG Presses Claims to Hidden Information'," Portable Antiquity Collecting and Heritage Issues (27 April 2009).

P. Barford, "Per Lucem ad Veritatem, sed nemo surdior est quam is qui no audiet" ("Through light to the truth, but no one is more deaf than one who shall not listen"), Portable Antiquity Collecting and Heritage Issues (28 April 2009).

Decision Rendered in ACCG FOIA Suit Against U.S. Department of State

The litigious measures of the ACCG, and particularly its FOIA lawsuit against the Department of State with co-plaintiffs IAPN and PNG, have come up in discussion on this website before. A decision was delivered last Friday. David Gill delivered the first public comments (see "The ACCG, IAPN, and PNG FOIA Case: Opinion Delivered", 24 November 2009, Looting Matters). Gill's latest PR Newswire article brings further attention to the decision:

SWANSEA, Wales, Nov. 27 /PRNewswire/ -- David Gill, archaeologist, reflects on the outcome of the Freedom of Information Act (FOIA) related case brought against the US Department of State by two numismatic trade bodies and a collector advocacy group.

Two numismatic trade bodies, the International Association of Professional Numismatists (IAPN) and the Professional Numismatists Guild (PNG), and a collector advocacy group, the Ancient Coin Collectors Guild (ACCG), had made a series of eight FOIA requests relating to the import restrictions on ancient coins from three specific areas: China, Cyprus, and Italy. The searches produced some 128 documents; 70 were released in full, and 39 in part.

In November 2007, the three groups (ACCG, IAPN, PNG) filed suit for the release of the remaining material. The action was taken because, according to the ACCG, the three bodies felt that "the State Department [had] recently imposed unprecedented import restrictions on ancient coins from Cyprus."

The restrictions on coins and other archaeological material had been put in place as part of a suite of measures to try and reduce the problem of looting. The Memorandum of Understanding (MOU) with Cyprus was praised by Dr. Pavlos Flourentzos, the then-director of the Department of Antiquities of Cyprus. He had been keen to include coins as part of the MOU. In a December 2007 interview for SAFE (Saving Antiquities for Everyone), Flourentzos noted, "there is no scientific reason to set coins apart from the rest of archaeological finds." He also stressed that the MOU "shows sensitivity to the importance of preserving world cultural heritage, a principle highly esteemed by the international scientific community."

The lawsuit has now come to a conclusion with the issuing of a memorandum by Judge Richard J. Leon on November 20, 2009. Leon concluded that the State Department had "conducted a reasonable search" and that "it properly withheld the disputed information under FOIA exemptions."

The three plaintiffs are now said to be considering an appeal. The ACCG is also planning to bring a test case apparently linked to import restrictions. In April this year, the ACCG had tried to import ancient coins from China and Cyprus through Baltimore Airport without the appropriate paperwork.

It would appear that the ACCG had intended to keep the decision quiet until determining how to react since no comment came from them until immediately after Gill publicized the ruling. Shortly thereafter, the ACCG made a press release, apparently authored by Executive Director Wayne Sayles, which includes some interesting spins ("Ruling in FOIA Case Condones DOS Intransigence"). Gill has provided further discussion ("'This litigation was in many ways a win for the plaintiffs': The ACCG Responds to FOIA Decision").

Also of interest is the tenor and reasoning of comments made by Dave Welsh (Chair of the ACCG's International Affairs Committee) on the decision ("FOIA Case Ruling", 25 November 2009, Unidroit).

The judge's opinion memorandum is publicly available (download here). The judge's comments provide insight into the sorts of documents that the ACCG and its co-plaintiffs were trying to obtain, but which the government determined were included in FOIA exemptions. Such material includes private emails sent by members of the general public in regard to the MoU:

The State Department further points out that, contrary to the plaintiffs' assertion, the information in question here-certain emails sent by members of the private sector in connection with the Act and certain materials from the Bureau submitted to the committee-was provided in confidence. (Grafeld Decl. at 38, 54, 60, 72.) Specifically, the Grafeld Declaration states that the information was provided in confidence to either the State Department staff or to the advisory committee, often by archaeologists, curators, collectors, dealers, and auction house specialists, with the expectation of confidence. (Id.) Such confidence was necessary in order for individuals to disclose information about the quantity, quality, and objects of looting. (Id.). The Government thus properly withheld the information under exemption (b)(3). See 19 U.S.c. §§ 2605(i)(l)-(2).

It also appears that the dealer lobby was curious to uncover the identity of State Department employees and law enforcers involved in the enforcement bilateral agreements and import restrictions:

The Government also withheld portions of two documents under exemption (b )(7)(C), which exempts information compiled for law enforcement purposes that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Specifically, the State Department withheld names, email addresses, and telephone and fax numbers of low-level employees included in a chain of emails created as part of law enforcement efforts to implement and enforce cultural property restrictions. I I (Def.'s Mot. at 9.) Given the individuals' strong privacy interest in their identifying information and the weak public interest in identifying information of low-level employees, the Court concludes that the State Department properly withheld the identifying information. See Lesar v. Us. Dep 't of Justice, 636 F.2d 472,487 (D.C. Cir. 1980); (see also Grafeld Decl. 42-44).

ACCG Challenges Import Restrictions by Staging the Import and Detention of Restricted Coins

The ACCG announced yesterday that it now plans to challenge U.S. State Department import restrictions on ancient coins from Cyprus and China outright. This announcement follows the Freedom of Information Act (FOIA) lawsuit that it filed against the U.S. State Department in regards to Cyprus in the fall of 2007, and the more recent announcement that the ACCG was planning to press for more documents in that case.

In the release on its website, "Coin Collectors to Challenge State Department on Import Restrictions," the ACCG explains its action:

"As a British Airways jetliner touched down in Baltimore on April 15th , many U.S. citizens were busy writing last minute checks to the IRS....

Part of the cargo of BA 229/16 that day was a small packet of 23 very common, inexpensive, Cypriot and Chinese coins being imported by a collector advocacy group, the Ancient Coin Collectors Guild (ACCG). The entry of these coins, forbidden by DOS under bilateral agreements with Cyprus and China, marked the launch of a test case to determine whether the State Department has banned their importation properly under a 1983 law dealing with the protection of cultural property.

As mandated, U.S. Customs detained these coins being imported from the United Kingdom. The ACCG now plans to use this detention as a vehicle to strike down the unprecedented regulations banning importation of whole classes of ancient coins, The collectors’ group claims that, among other abnormalities, the decision process for these agreements was orchestrated contrary to the spirit and intent of governing law. Moreover, they claim that the State Department misled Congress and the public about its decision not to follow the recommendations of its own Cultural Property Advisory Committee (CPAC) — a group of experts charged with advising the president on how best to balance the goals of protecting cultural heritage against the needs of a legitimate trade in cultural artifacts."

In spite of its name, the Ancient Coin Collectors Guild is a lobbying body that is most concerned about the interests of no-questions-asked dealers and importers. This is made evident by the fact that rather than attempting to address ethical and legal problems of indiscriminate collecting and dealing in a proactive and transparent way, its leaders have prefered to challenge protective legislation in favor of private and commercial interests. Rather than engaging in an equitable and informed dialogue with archaeologists and government officials/advisors, they have prefered to distort the issues and resort to the tactics of intimidation and abhorrent name-calling against those who oppose their views. The most prominently displayed financial backers on the ACCG's website are dealerships and auction houses. Every ACCG leader listed on its officers pages is a former or active ancient coin dealer, including its founder and executive director. Even some collectors themselves have recently commented on various online discussion fora that it is increasingly clear the ACCG is representing a purely commercial and dealer/importer-driven interest, being less concerned about the "rights" or interests of the private collector.

At least these latest antics by ACCG leaders clearly show what their true goals have been since it filed the FOIA suit in 2007: to strike down protective legislation that only affects dealers and importers who have no real concern for due diligence processes.

Surely, U.S. Customs officials acted properly in detaining coins of Cypriot and Chinese type that were imported without any previous documentation and one would think our border protection officers should be commended for effectively implementing bilateral agreements and controls, especially operating under the likely assumption that one of the ACCG officers provided U.S. Customs with an anonymous tip to ensure the coins would be detained as planned. The ACCG indicated these coins were chosen for their scheme because they have no previous history, which begs the question where they came from and how recently they appeared on the market. Were they looted? What information was lost in the process? The dealer lobby, of course, is not concerned about such things and sees it differently, planning to use this "test case" as a means of overturning import restrictions. It will be interesting to see if the ACCG's buffoonery in this "test case" will be taken seriously by the courts.

Interestingly, in their ignoble ploy to invent a cause to strike down bilateral treaties on import restrictions via legislative measures, the ACCG leadership may have violated their own Code of Ethics, which states "Collectors and Sellers...will comply with all cultural property laws of their own country."

At least now the ACCG's leadership is showing its true colors perhaps more than ever before and its true aims and interests are becoming increasingly apparent.

(Image: The King of Spades)

The ACCG "Benefit Auction" and Intrinsic Interests

I have critiqued the goals, motives, and tactics of the Ancient Coin Collectors Guild (ACCG) several times before (those unfamiliar with the ACCG are urged to consult a list of some relevant web-postings at the end of this discussion). For those who do not know, the ACCG is a 501 (c) 4 organization to which financial contributions are not normally tax deductible since up to 100% of its funds can be used for the purposes of political lobbying. According to its website, the goal of of the ACCG is to maintain a "free-market" in all coins. It has lobbied against legislative measures designed to protect archaeological and historical sites from destruction. A possible financial motive for its activities may be apparent in the fact that its founder and most of its officers are ancient coin dealers, and the majority of its financial contributors (especially the larger contributors) are ancient coin and antiquities dealers and auction houses.

In November of last year, the ACCG announced it was suing the U.S. Department of State under the Freedom of Information Act (FOIA) for more transparency on the process under which it decided to impose import restrictions, at the request of Cyprus, on certain ancient coins of Cypriot type. Many who are familiar with the "blogstorm" last fall about these issues will recall that several vocal ACCG members and dealers were alleging various conspiracies between archaeologists and State Department officials (links here and here to relevant posts, some of which reference dealer accusations). A "benefit auction" for which the ACCG has been soliciting donations, which it will auction on August 17, 2008, has now sparked my interest.

In March 2008, it was announced that the ACCG would host a "benefit auction" in order "to raise funds for anticipated legal expenses in opposition to State Department imposed import restrictions on ancient coins" (for the notice on the ACCG website, dated in April after an update, click here). What I find most peculiar, and perhaps telling, about the ACCG's announcement is that it came only one month after a judge set the schedule for the pending lawsuit, in which it gave the State Department until May 9, 2008 to handover requested documents or request exemptions and the ACCG would have until June 2, 2008 to decide whether or not it would continue to pursue action. The State Department's deadline was still months away as the ACCG was soliciting donations for "anticipated legal expenses" to challenge the State Department further.

What does this mean? Is this about more than transparency? One can only speculate.

In any case, the auction itself is interesting in the context of other discussions I have had on the ACCG and its activities (again, see a list at the end of this post). As expected, the level of provenance reporting is very low; only 12 out of 265 ancient objects donated so far have any recorded history whatsoever and only six of those have a pre-1970 collection history or are recorded in the Portable Antiquities Scheme (PAS). See Figure 1 for the level of reporting (click on the figures to enlarge). This falls in line with many ancient coin auctions. In the SAFE Feature, "Why Coins Matter..." [similar version at FeRA], I demonstrated that CNG, a major auction house for ancient coins in the U.S., only reported the history of a coin in about 20% of its lots, with only 0.17% of these pre-dating 1973 in its Triton X sale (Jan. 2007). Further research has indicated that in all of its printed sales in 2007, which included 22,681 ancient coins, 77.28% had absolutely no recorded history and only 1.89% had a history before 1973. Another major ancient coin auction house in the U.S., Freeman & Sear, offered 3,384 ancient coins in its printed auctions and mail lists in 1973; less than 5% of the descriptions provided any previous history on the coins and only 1.15% (39 coins) had a history before 1973.

Typically, auction houses are the most diligent about recording provenances; when one considers the masses of coins that are sold on eBay, VCoins, and in other venues, we can imagine over 99% of ancient coins are sold without any recorded history. One coin dealer has vigorously asserted that very little in the way of fresh material enters the market and that much of what is sold has been bought and sold since the Renaissance and the provenance merely lost. Can he really expect us believe this, when we constantly hear of reports of antiquities smugglers and looters in sources countries being caught with large caches of ancient coins among other objects and when massive shipments are intercepted by Customs officials? (R. R. Dietrich, "Cultural Property on the Move - Legally, Illegally," International Journal of Cultural Property 11.2 (2002): 294-304, discusses a literal ton of ancient coins (c. 350,000 coins) that were smuggled out of Bulgaria into the U.S. by just one dealer in a short amount of time). Even on eBay tens of thousands of soil-encrusted coins are sold each week in bulk lots and online correspondence indicates these same "wholesalers" and "importers" also supply many individual dealers in private transactions. Certainly import restrictions are designed to counter the sort of wholesale destruction of cultural heritage and archaeological sites caused in the procurement of such masses of material.

We have constantly been told that dealing in ancient coins is not a profitable venture and that it is merely the extension of an innocent hobby. Curiously, however, two of the ACCG's biggest financial backers (benefactors), are the aforementioned auction houses. In 2007, CNG reported $9.7 million in gross auction sales, excluding its 15% buyer's fees or any consignment fees. It also hosts bi-weekly internet auctions, which are not included this figure. Freeman & Sear offered $4.38 million in its printed auctions and fixed price lists in 2007; this again excludes any fees and its electronic auctions. Even the ACCG's founder and executive director (and also a benefactor) has a respectable inventory as co-owner of Sayles & Lavender. As of 14 April 2008, his online inventoried included ancient coins valuing approximately $258,583 in total.

Interestingly, the biggest financial backers of the ACCG and its efforts to combat such protective legislative measures and preserve a "free-market" in ancient coins are also dealers and auction houses. Figure 2 shows that 75% of donors to the ACCG "benefit auction" are ancient coin and antiquities dealers.

If we break down the data a bit more, it is clear that those investing the most into the ACCG's operations are those who would stand to lose the most if the trade in ancient coins and antiquities were to begin valuing documentation and the recent history of an object. At present it is very easy for an ancient coin, or any antiquity for that matter, to make it from the ground where it was removed by gangs of metal detectorists, tombaroli, or other looters, to a dealer's inventory.

To date, an estimated $26,875 worth of merchandise has been donated to the ACCG's "benefit auction" where 100% of the proceeds will go to these "anticipated legal expenses" in opposition to import restrictions. The material donated so far includes 263 ancient coins, 2 other antiquities (an Egyptian scarab and a Roman glass bracelet), a book, and five $100-gift cards for use to buy more coins or antiquities from VCoins. Over 40% of the estimated market value in this auction was donated by Freeman & Sear and CNG auction houses (see figure 3). Other dealers donated about 44% of the remaining worth and collectors and anonymous donations comprise the remaining 14%.

What about the history of the objects the ACCG is now auctioning to further their own interests? Where are they from? Under what circumstances have they entered the market? We only know for certain that 6 coins in the entire auction come from old collections or were recorded in the PAS (1 from a 1923 collection, 5 from the Braithwell hoard, recorded in the PAS). What is the ACCG trying to do with the money it raises from the sale of this material and what are the consequences of its actions? There is some irony here.

Suing the State Department must be a costly task indeed. But what about the fate of our past and the material and intellectual consequences of indiscriminate market activity and the apparent lack of concern that trade interest shows for it?


Background Information:

"Why Coins Matter..." SAFE Feature; similar version at FeRA

Archaeologists Don't Care about Coins? (Nathan Elkins)

Can Cultural Property Legislation Kill an Academic Discipline? (Nathan Elkins)

Codes of Ethics vs. the Financial Interest (Nathan Elkins)

Coins, Ethics and Scheduled Monuments (David Gill)

Coins, Contexts and Collecting (Fleur Kemmers)

It's All the Same: The Looting of the High Arts vs. the Looting of the Minor Arts (Nathan Elkins)

"Dilettanti and Shopmen": Divergent Interests in Looting and Cultural Heritage Issues (Nathan Elkins)

Also checkout relevant posts with the keyword "coins" at David Gill's Looting Matters blog

Import Restrictions on Ancient Coins

A lobbyist who works on behalf of trade organizations has suggested that ancient coins currently protected by memoranda between the U.S. and certain foreign governments are not legally placed there since the basis of those restrictions is "place of production" rather than where they are found.  He alleges the CPIA is thus violated.  The exchange is in the comments section of a previous post here and his take is also presented on his website.

As I pointed out in that exchange, coins that are protected are types that are found in that country.  The memorandum with Italy, for example, protects early Roman coinage (aes signatum, aes grave, and the early republican struck coinage, as well as Roman colonial coinage) and the coinage of Greek cities in southern Italy.  Scholarly publications demonstrate that such coins had a primarily Italian circulation.  The memorandum with Italy even cites one of many sources that reference circulation and find patterns.  Widely circulating types where a find spot cannot be attributed (e.g. most Roman republican and imperial coins) are not protected by existing legislation.  As most republican and imperial coins were struck in Italy, a country with which the U.S. has an MOU, one is left to question Mr. Tompa's allegations.

The "scholarly evidence" submitted to CPAC by ACCG that Mr. Tompa refers to as an apparent indication that where such coins are found is not considered by CPAC is a simple list of hoard finds of types outside of the borders of countries that request MOUs.  It suggests a limited number of coins circulated out, but it totally ignores the fact that the vast majority of such types are found in the country of origin.  It is common knowledge among numismatic scholars that many coin types (e.g. some Greek coins and Roman provincial coins) had a very limited circulation and it is curious that the trade lobby does not acknowledge this in communications with CPAC; instead they argue more simply (and too simply) that coins can be found anywhere.  Would one really expect to see aes grave exavated in Israel or Jordan?

In considering whether Mr. Tompa's take on the situation is legitimate, one may recall that ACCG's lawsuit against the government, which has been handled by Mr. Tompa, has been dismissed on multiple occasions.  Legal authorities have not agreed with ACCG that there is any mishandling of import restrictions philosophically or legally. 

Rather than lawsuits and sniping over the interpretation of CPIA, would not a better approach be to recognize that indiscriminate attitudes in the sourcing of ancient coins promotes looting and destroys historical information?  And recognizing that, would it not be a better approach to engage in a productive dialogue about how ethical collecting can exist without maintaining a damaging status quo?