On March 30, 2009, the Paleontological Resources
Preservation Act (PRPA) became law on lands managed by various agencies of the
federal government. The law had been
through numerous drafts before approval by the US Congress and subsequent
signing by President Obama. Although in
1999 the Senate Interior Appropriations Subcommittee asked federal agencies to
prepare a report on fossil resource management, most rockhounds, and many
professional paleontologists, believed that any new regulations would be
written to protect vertebrate fossils (in my opinion). However, unbeknownst to most amateur fossil
collectors, the United States Forest Service (USFS) published (May 23, 2013)
draft regulations concerning the collection of invertebrate fossils and plant
remains on land managed by the Agency.
The comment period was 60 days and the Agency received few legitimate
(non-form letters) concerns. Candidly,
the proposal caught most rockhounds “off guard” and it was tough for rock and
mineral clubs to organize informative responses. In my opinion, rockhounds lost
many, many collecting privileges associated with invertebrate fossils as the proposed
rules are now codified as 80 FR 21588. However, in defense of the USFS, the
Agency was simply interpreting tenets of the PRPA, and that is the magic word,
at least for me---interpretation.
In December 2016, proposed regulations for lands managed
by the Department of Interior (Bureau of Land Management [BLM]; National Park
Service [NPS]; Fish and Wildlife Service [FWS]; Bureau of Reclamation [BR])
were published in the Federal Register and became available for comments
(received no later than February 6, 2017).
The proposed rule [of
Interior] would address the management,
collection, and curation of paleontological resources from federal lands using
scientific principles and expertise, including collection in accordance with
permits; curation in an approved repository; and maintenance of confidentiality
of specific locality data.
Most of the proposed regulations (formally known as A Proposed Rule by the Land Management Bureau and the Fish and Wildlife Service on 12/07/2016), but specifically subparts
A through H, applies to all four bureaus---BLM, FWS, BR, NPS. Parts A through H
are also very similar, perhaps mostly identical, to current USFS regulations
(80 FR 21588). However, Part I of the
proposed rules notes some differences between Interior (BLM and BR) and the USFS regulations
regarding actual field collecting of common fossil plants and invertebrates. I
should also note that PRPA does not allow casual collecting in areas
administered by NPS or FWS.
So, what are some of the proposed items in Interior’s new
rules and regulations---hereafter known as the Rule? I will only hit on a few sections as the
proposed Rule, as published in the Federal Register, is tens of pages long.
The Rule does not impose additional requirements regarding
fossil collecting activities on permitted lands associated with general mining
or mineral laws. It appears that if you
have a permitted mining claim the fossil plants and invertebrates are fair game
for any collecting (§ 49.15 …states that
the proposed rule does not impose additional requirements on activities
permitted under the general mining or mineral laws). Does this mean that if you are mining
sedimentary rocks for minerals (such as barite or uranium) that any and all
invertebrates may be collected? I don’t
know; however, that seems to be a reasonable assumption to me. But remember, my interpretation of various
regulations and codifications found in the Federal Register may be subject to
suspect. I do know, however, that a
mining claim will not be approved by an Agency simply to allow a person/company
to collect fossils. Any approved mining claim
must include some sort of a commodity and fossils are not such.
The mining claim section of the Rule is an interesting
one. Around this part of the country one
permitted mining claim would create more surface disturbance, and could destroy
more fossils, than all the Colorado rockhounds added together. BLM and USFS manage multi-purpose lands;
however, some activities are much higher on the pecking order than rockhounding.
Fossils found in an archaeological context are
archaeological resources, and are not considered paleontological resources. It is always best to not disturb
archaeological resources.
An authorized federal officer at BLM or USFS (the
person in charge) may decide that specific rocks/minerals, such as coal, chalk
beds, diatomites, etc. are not subject to PRPA rules as paleontological
resources. However, there are a myriad
of other federal regulations that may protect them.
The Department of Interior has specific Agency regulations
concerning the collection of petrified wood on their managed lands. Petrified
wood is managed as a paleontological resource when on or from lands
administered by NPS, Reclamation, and FWS. On lands administered by BLM,
petrified wood (defined by the Petrified Wood Act of 1962, Pub. L. 87-713, 76
Stat. 652, Sept. 28, 1962 as agatized, opalized, petrified, or silicified wood,
or any material formed by the replacement of wood by silica or other matter,
and identified as a mineral material under the Materials Act of 1947) is
subject to commercial sale at 43 CFR part 3600 and free use regulations
at 43 CFR part 3622. Therefore, on BLM lands, petrified
wood may be managed as a paleontological resource, but the savings provisions
in PRPA (16 U.S.C. 470aaa-10) prevent the imposition of
additional restrictions on the sale or free use of petrified wood. When it is
not subject to sale or free use, petrified wood on BLM-administered lands may
be managed as a paleontological resource and/or under the authority of FLPMA. My old and used mind
fails to understand this latter statement!
Why would not all petrified wood collected on BLM-managed land be free use?
PRPA rules do not apply to “Indian lands.” However, lands managed by Native Americans always have collecting rules so avoid
trespassing.
A federal authorized officer may restrict access or
close a collecting area at any time. Therefore,
fossil collecting on federal lands will now essentially involve a visit or call
to an agency office.
Microfossils, such as foraminifera and radiolarians,
are paleontological resources and are subject to collecting rules---except if
you are drilling a permitted energy well.
The drilling bit may then grind up as many microfossils as the driller
pleases. Yes, that last sentence was
cynical.
Most individual rockhound collecting of invertebrate
and plant fossils (excluding petrified wood) falls under the definition of casual collecting; therefore, such
individuals may collect on BLM lands that are not restricted or closed--lands
such as BLM-administered national monuments would be closed. The Rule notes
casual collectors may collect common
invertebrate and common plant paleontological resources…casually. Common
invertebrate and common plant paleontological resources are invertebrate or
plant fossils that have been established by the bureaus, based on available
scientific information and current professional standards, as having ordinary
occurrence and wide-spread distribution. But, and there are many “buts” in
the Rule, not all invertebrate or plant
paleontological resources are common. When in doubt, collectors should err on
the side of caution and collect only the resources that they know are common. In
other words, pay a visit to an Agency to find out what fossils an officer has
decided are “common.”
So, what is a casual collector as defined by the Rule?
Casual
collecting means the collecting without a permit of a reasonable amount of
common invertebrate or plant paleontological resources for non-commercial
personal use, either by surface collection or the use of non-powered hand
tools, resulting in only negligible disturbance to the Earth's surface or paleontological
or other resources. Although this
seems a restrictive definition, it is much better than the USFS definition: causal collecting is generally happenstance without intentional planning or preparation…,
the view of casual collecting as an activity that generally occurs by chance
without planning or preparation. The
“good thing” about the Rule and the USFS regulations is that they clarify the
allowance of collecting certain fossils from their managed lands.
But here are additional “buts” of the Rule. The casual collector may only collect 25
pounds per day, not to exceed 100 pounds per year---and this weight includes
matrix. This part of the Rule was
modified after the codified collecting rules long established for petrified
wood; however, there is a big difference between specimens of petrified wood
and invertebrate fossils. Petrified wood
is usually collected without matrix while many invertebrate fossils are
collected with matrix. Rockhounds do not want to take a chance of breaking the
specimen by chipping away the matrix in the field. Collectors also may not pool a total weight
with their buddy in order to collect larger specimens. What does this mean for the collection of
larger fossils weighing over 25 pounds?
I don’t know. Perhaps it
indicates a permit is required? However,
an issued permit requires a collector give up his/her specimen to a museum or
repository!
Collectors also may not disturb over 1 square yard of
the landscape, and your digging buddy must be at least ten feet away from your
land disturbance. I am uncertain if a
collector may have several disturbances per day? At any rate, like all good rockhounds,
collectors must fill in their disturbance holes.
This restrictive regulation on land disturbance
continues to be a problem for me. If the
BLM really wants to stop major land disturbance, then I suggest examining
extensive disturbance by domestic livestock, off-trail ATV and OHV riders, and even
off-trail mountain bikers and hikers (among others). I support these multi-use land activities, in
moderation, but simply want to point out that land disturbance by rockhounds is
minimal compared to these other large-scale activities.
Casually collected fossils may only be used in a
personal collection and may not be sold, bartered, used for financial gain, or
research! I presume this section also
means that club members may not use the collected common plants and animals in
their club silent auctions. What about
gifting a common plant or invertebrate during a club gift exchange? Does bartering mean that fossil interest
groups may not trade collected fossil specimens? I don’t have those answers. But to me the interesting aspect of this
tenet is that the casual collector may not use his/her collected fossils for
research! The federal agencies want the
collector to get a permit if any of the fossils are used in a research project.
I presume the point behind this requirement is to make certain that fossils in
the research project are documented as to provenance and placed in an
accredited repository. However, I would
like to suggest that any casually collected fossils could be turned voluntarily
over to a repository before results of the research are reported. A case in point---our rock club-sponsored
Pebble Pups and Junior Scientists collect fossils and actually write up reports
(sometimes published) and present results at meetings where abstracts are
refereed. How can an agency expect a
group of Pebble Pubs to submit a permit application (see below)?
Another set of questions, then, involves the
definition of research. If a collector
completes a study on a casually collected fossils and later presents
information on such organisms at a rock/mineral club meeting---is this
research? What if the collector
“publishes” results of their study in a club or federation newsletter, or on a
Blog---is this research? Questions to be
answered. I do not want some of these
restrictive clauses in the Rule to stifle the interest of our children and young
adults.
As with the USFS regulations, the Rule requires that
only hand tools may be used in collecting fossils. These excavation tools may not be motorized
and must be light and small enough to be hand-carried by one person. Does this mean that my geological hammer may
not be carried in my backpack, or must it be hand-carried? Does it mean that I cannot bring along a two-wheel
cart to pack a 25-pound specimen back to the vehicle (my knees will not allow
carrying 25 pounds plus equipment)? Luckily,
Interior listened to criticism directed at USFS over their regulation about
size of collecting tools-- but not large tools such as full-sized
shovels or pick axes. I don’t have any trouble carrying a full-size
shovel in my hand!
Unfortunately, Interior chose not to rid the
regulations of the permitting process for small groups of rockhounds. I argued against this rule implemented by the
USFS without success. As I read the rules,
and perhaps they are beyond my comprehension, it is my understanding that groups
of rockhounds heading out to collect some invertebrate fossils must have a
permit. I can understand permitting a
group of professionals going out to quarry a marine limestone looking for
specific ammonites. I cannot understand
requiring a permit in order for a club’s fossil interest group, or a group of Pebble
Pups, heading out on a beautiful fall afternoon to do some prospecting for
fossils! If a group of Pebble Pups, some as young as six years old, go fossil
hunting at a locality where both common and uncommon invertebrate fossils may
be found, then a permit is required (as I try to understand the Rule). For example, I can envision local localities,
actually a number of old quarries, where there is a mixture of common and
uncommon lower Paleozoic fossils represented.
These quarries have been prospected for years and rockhounds have almost
always submitted their interesting specimens to museums and repositories. However, the permitting process is a very
onerous experience for “ordinary” rockhounds, so what happens? Collection without a permit continues, with
loss of interesting specimens heading to a museum due to a fear of prosecution,
or collecting stops and children and adult rockhounds simply drop out.
Assume that a permitted fossil prospecting activity
could be pulled off, please note that all prospectors must deposit their fossil
finds in a designated repository. Can
you imagine taking kids on a fossil hunt and then taking away their finds? In addition, the rules and regulations concerning
report writing are onerous (for most rockhounds) and would require additional
time.
As a former classroom instructor, I could not imagine
applying for a permit every time I took my students fossil hunting. Certainly, a permit was required whenever a
student researcher was out collecting fossils and describing stratigraphy---these
collected fossils were deposited in a repository. In fact, during my early days of writing
environmental impact statements (fossils) for projects crossing federal lands I
devised my own permits (with approval from the agencies) from items like
logging permits. I am not against
permits; however, I simply want to allow for some slack with non-professional
collectors.
In addition, mandating that all permitees must deposit
their fossils in an approved repository creates other concerns since the
requirements for establishing a repository are pretty stiff. Most colleges and universities with a
scientific staff have something, a museum or curated collection, that could
qualify as a repository. But what about
the poor old group of rockhounds---would nearby repositories curate their
specimens without monetary assistance (Permittee
is responsible for the costs, monetary and otherwise, of the permitted
activity, including fieldwork, data analysis, report preparation, curation of
the collection and its associated records consistent with subpart C of this
part)? I don’t know. Once fossils are collected under a permit
they remain the property of the Agency in
perpetuity. Even if a federal
authorized officer removes the collected fossils from the research collection
the specimens still remain in repository collection ”somewhere.”
My comments pertain to only a small part of the Rule
but are, in my opinion, most directly related to fossil collecting by
rockhounds and other amateurs. I want
members of our rock and mineral clubs, including Pebble Pups and Junior
Scientists, to have an opportunity to collect fossils without fear of “breaking
the law.” I want these members to have an
opportunity to study and photograph and learn about specimens without fear
their work is research and requires a permit.
I want members, especially younger members, to have an opportunity to
present information at professional meetings about their fossils finds without
fear their study requires a permit. But,
I would also expect the mentors of the collector to require fossil specimens be
offered to a museum and/or repository along with appropriate provenance
information. I believe there must be
some middle ground in this entire permitting and land disturbance issue. If not, we may begin to lose generations of
future STEM graduates that our nation badly needs.
With that said, please note that I have several
friends and acquaintances working in the federal agencies. In fact, I take pride in the fact that some Agency
paleontologists were my students and we have remained friends for
decades---they do excellent work. In
visiting with these paleontologists, I have found they are, in their opinion,
constrained by federal law found in the PRPA.
Perhaps they are; however, I still believe in compromise and middle
ground and “working things out.” Is this
possible with the rules in the PRPA? I
don’t know. Could interpretation of PRPA
regulations be less “strict.” I don’t
know.
What I do know is that these new laws (USFS) and the proposed
Rule (Interior) are almost impossible to enforce---I am not advocating breaking
the law but simply stating my strong opinion that collecting of invertebrate
fossils on federal lands will go underground.
Unlike vertebrate fossils, where poachers are interested in selling
their unlawfully collected specimens, rockhounds collecting invertebrate
fossils are interested in building up a personal collection, trading specimens
with club members, and perhaps most importantly helping young children and
their schools build collections. Also
unlike the somewhat easily identified vertebrate fossils (yep, that is a
dinosaur skull so leave it alone), invertebrate fossils are much more difficult
to identify. I am guessing that most
rockhound amateurs will have great difficulty identifying uncommon fossils
(need a permit) from common fossils (casual collecting).
So, what advice can I offer? Take the time to read, or attempt to read, the
Federal Register: https://www.federalregister.gov/documents/2016/12/07/2016-29244/paleontological-resources-preservation.
After
this little chore, rockhounds should submit personal comments, or even pooled comments
by several members of the club; however, it is best to not use form letters. Also, remember as you comment:
- Provide first and last name, city, state, & country. All other fields of information are optional. Keep in mind that much of this information is publicly viewable.
- Comments may be typed in the box provided or they may be uploaded as attachments (Word docs or PDFs only).
- Comments may be brief or in-depth/well-researched. Comments with facts to support them are much more useful (e.g., examples of overlooked scenarios). Keep comments civil and straightforward. Comments using offensive terms, threats, or other inappropriate language will be disregarded.
- Comments on the proposed rule must be received by February 6, 2017.
And finally, stop in Agency offices (especially BLM
and USFS) and visit with the geologists—they are a nice group of people. The paleontologists in both the USFS and the
BLM are stationed few and far between.
But again, if you are in their area stop in and converse with them.
Perhaps I am just a crusty old guy remembering “the
good old days” of collecting. But perhaps
I am just an old guy seriously worried about the impact of the Rule (and USFS
regulations) on school children, Pebble Pups, rockhounds, and interested
amateurs. I want to find a common ground with the USFS
and Interior in the permitting processes, the land disturbance issues and the
collecting limits. Will it happen? Another question that I cannot answer.
No comments:
Post a Comment