COLLECTING INVERTEBRATE FOSSILS ON PUBLIC (BLM) LAND

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.