Often when you think you're at the end of something, you're at the beginning of something else. Fred Rogers
On August 1, The Department of Interior published its Final Rule signaling the upcoming implementation of the Paleontological Resources and Protection Act. That is, Interior’s plans to protect and access fossils located lands administered by the Bureau of Land Management (BLM), Bureau of Reclamation (Bur Rec), U.S. Fish and Wildlife Service (F&W), and the National Park Service (NPS). In reality, these are plans to access and regulate the collection and preservation of invertebrate and plant fossils (paleontological resources) since vertebrate fossils are protected and regulated on all federal lands—if one does not have a permit just leave the vertebrate fossils alone; you may not collect them. Essentially, these published rules regulate the collection on lands administered by the Bureau of Land Management, the 800-pound gorilla in Interior. All fossil collecting on lands administered by the National Park Service and Fish and Wildlife is prohibited. Reclamation is a “maybe” since the Bureau will establish special collecting areas for the public, at least that is the word from Interior.
Interior defines paleontological resources (fossils) as: any fossilized remains, traces or imprints of organisms preserved in or on the Earth’s crust. These resources are valuable because they provide unique information about the history of life on Earth. That seems a straight forward definition but there is a long history behind the collecting aspect.
Amid much controversy the Paleontological Resources Protection Act became law in 2009: https://www.federalregister.gov/documents/2022/08/02/2022-16405/paleontological-resources-preservation. In 2015 the U.S. Forest Service (USFS), a part of the Department of Agriculture, implemented their paleontological regulations for collecting fossils, essentially invertebrate and plant fossils since petrified wood has its own regulations and vertebrate fossils are prohibited (see Federal Register May 18, 2015). Being the old curmudgeon that I am, my Blog Post of June 21, 2015, was very critical of these new regulations and I presumably lost long time friends. The Posting received hundreds/thousands of hits with one of the major “jokes” being short-handle shovels are OK for collecting but long-handle shovels are verboten. In addition, I thought the requirements for permits and repositories were much too prescriptive. I have since given up on advising any child or adult about collecting fossils on USFS lands.
The Paleontology web site of the USFS (https://www.fs.usda.gov/science-technology/geology/paleontology) states: Can I collect fossils?
If you plan to collect fossils, make sure you know the rules. Forest Service regulations allow for casual collection of ‘common’ fossils that are not connected with scientific study. However, such opportunities are allowed only under certain circumstances, and collection is a privilege that carries with it responsibilities. Contact the national forest or grassland where you are interested in searching to understand what you can and cannot do, and how you might assist in reporting fossil locations to scientists. If you are unsure whether a particular invertebrate or plant fossil is common and abundant, or otherwise meets the conditions established for casual collection, a good rule of thumb is to not remove or disturb it without seeking advice from the local Forest Service office. This ensures these resources are managed for the benefit of future scientific work and for the enjoyment of visitors. Unauthorized fossil collection is a violation of federal law. You are responsible to know what and where it is legal to collect fossils. Know before you go.
On the other hand, I tried to check out requirements for collecting fossils on specific USFS “forests.” Guess what? I simply could not locate much, or any, collecting information and certainly not information on the definition of common fossils. That pretty much puts the stop to mom and dad taking the kids out on a Saturday field trip to hunt for invertebrate fossils---where can they locate information? Most forests have a hot link for recreation activities where one can learn (just a little) about rockhounding, and flying a drone, but nothing about collecting fossils. As I previously stated I no longer tell a kid where to pound on the rocks to find a fossil snail. Too complicated. In my opinion, and only my opinion, people just go out and pound on rocks and dig in the shale to find fossils. Sort of undercover. I am certain that USFS personnel would be happy to visit with a family about collecting (they are really nice people) but all of that takes parental time and energy, something that that most people cannot afford, or information is completely lacking.
But back to the BLM. I believe, but my mind is aging, that BLM’s position on collecting fossils was going to be “identical” or nearly so as the USFS regs. Such BLM information was published on December 7, 2016, in the Federal Register (great bedtime reading). But then something, whatever something means, happened and approval of the BLM collecting regs was put on hold. Rumors floating around here in Colorado said the “hold” was put in place by pressure from a member(s) of Congress. And so now, five and a half years later, the “Final Rule” pops up again in the Federal Register.
I do not have the energy to completely compare the recently revised Final Rule with the 2016 version. However, it appears that BLM listened to comments submitted by a variety of fossil collectors and rockhounds about the 2016 version. The best that I can say is that people, especially rockhounds, were very angry with the prescriptive rules found in the USFS and BLM regulations. All of this “rule writing” was occurring in a time of unrest in many western states citizens were complaining about presumed overreaching regulations concerning federal lands. These were the days of Bears Ear National Monument battles, etc. In reality, many rockhounds simply went on collecting invertebrate fossils and paid little attention to rules and regulations. As usual, most rockhounds informed professional paleontologists when they stumbled on a vertebrate fossil.
With that in mind, I believe that Scott Foss, the Division Chief in BLM (and a paleontologist I have known since his undergraduate days) has overseen a reasonable revision and workable (with a few changes) guidelines for the collecting of invertebrate fossils and plants. The two provisions of the 2016 Final Rule that were of greatest concern to rockhounds were the permit requirements and the definition of causal collecting.
The 2022 Final Rule states: Regulations at 43 CFR 49 (promulgated under PRPA, 16 U.S.C. 470aaa-9) require the Bureau to clarify guidance on the following topics:
1. Paleontology Permitting. The Paleontological Resources Preservation Act of 2009 (PRPA; 16 U.S.C. 470aaa-3) and regulations at 43 CFR 49.100 authorize the Bureau to issue paleontology collection permits. Permitting program guidance is clarified to state that the BLM will issue one type of paleontology permit and simplify the permit application process to improve public access to paleontological resources. Permit applicants are not required to possess an advanced degree in paleontology to receive a permit. Rather, the applicant must show they possesses the experience and qualifications to carry out the work that would be authorized by the permit.
3. Casual Collection. For the purposes of casual collection on BLM-administered lands, non-vertebrate paleontological resources may be assumed to be common unless or until they are discovered not to be common (I have bolded the script).
I am still a little fuzzy about the permitting process; however, PRPA and the regulations at Part 49 require the Bureau to do the following:
- Manage paleontological resources using scientific principles and expertise
- Maintain a program of inventory and monitoring of paleontological resources
- Establish an education program to increase public awareness about paleontological resources
The regulations also require the Bureau to:
- Implement a program of permitting for the collection of paleontological resources
- Require the preservation of paleontological objects for the public in approved museum collections.
It is my opinion that most rockhounds will not need a permit since their collecting will fall under Interior’s rule for causal collecting: Provide for casual collection of common non-vertebrate fossils by the public without a permit (BLM and Reclamation lands only).
Proposed § 49.50 would clarify when a permit is required and who must have a permit. A permit would be required for collecting paleontological resources or disturbing paleontological sites except for casual collecting on certain lands managed by BLM or Reclamation where casual collecting is allowed.
Persons who need a permit are those who are studying, in detail, specific locations where fossils might be rare or scientifically important and such fossils will end up in museums. I collected fossils, mostly vertebrates, for decades and deposited such in museums and other repositories. I always had a permit and in the “olden days” some small federal offices and I constructed our own permits from mining or logging permits. The best idea for persons interesting in obtaining a permit is to arrange a visit with BLM paleontologists. The Federal Register has tens of pages devoted to “permits.” Read at your discretion with much caffeine.
As for Causal Collecting: 3 CFR § 49.810 defines casual collection:
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.
Non-vertebrate fossils are considered common until they are recognized to not be common. Established that Federal land managers will consult with knowledgeable paleontologists to determine which plant and invertebrate paleontological resources are not common. The BLM wants collectors to share their discoveries without fear.
And now, for more details:
CAUSAL COLLECTORS MUST KNOW THE RULES, THE NITTY GRITTY DETAILS SINCE § 49.805(c) clearly places full responsibility on persons interested in casual collecting to ascertain which bureau manages the land where those persons would like to collect paleontological resources, whether the land is open to casual collecting, and what may be collected in an area, and to obtain information about the managing bureau's casual collecting procedures.
NOT ALL BLM AND BUR REC LANDS ARE OPEN TO CAUSAL COLLECTING: (§ 49.805) Casual collecting will not be allowed on BLM lands that are or become closed to casual collecting, BLM-administered national monuments, BLM-administered national conservation areas, outstanding natural areas, forest reserves, or cooperative management and protection areas, except where the bureau has specifically determined that casual collection would not impair the intent of the preservation designation. § 49.40(b) would clarify that other authorities may also be used to restrict access to or close areas in order to preserve or protect paleontological resources or provide for public safety.
ARCHAEOLOGICAL CONTEXT: (1) Fossils found in an archaeological context are an archaeological resource as defined in section 3(1) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb(1)).
And now for my opinions:
RULES THAT IRRITATE #1: § 49.810(a)(2) establishes a “reasonable amount” for casual collecting as 25 pounds per day per collector, not to exceed 100 pounds per year per collector. These amounts represent a balance between PRPA's mandate to allow casual collecting and other laws that require the bureaus to protect and manage other natural and cultural resources. However, a person may collect more than a 25-pound hunk if such is needed to protect the integrity of the specimen.
My irritation with this rule is that it seems unenforceable—must collectors haul along a scale for determining weight? In addition, if a rockhound hauled home four 25-pound pieces of limestone their collecting for the year would be over. But wait! What if the collector did not want to chance breaking their paleontological resource in the field and instead removed fossils from the 25-pound hunk while at home? After removing and cleaning they might end up with two pounds of fossil brachiopods. What is the final total of collected paleontological resources! Would you want to take that mess to court? It might be better to ”suggest” limits since rules are constructed to be enforced.
RULES THAT IRRITATE #2: § 49.810(a)(5) defines the kinds of tools that may be used to casually collect these resources. These tools must be small, such as a geologic hammer, trowel, or sieve; they cannot use or be operated by a motor, engine, or other mechanized power source; and they must be light and small enough to be hand-carried by one person. A tool that exceeds this definition cannot be used to casually collect these resources.
I do congratulate the BLM for ridding the regs of short handle vs long handle shovels. However, I believe the regulation is overkill and reinforces the perception that rules of the Federal Government are too prescriptive and places the federal paleontologists in a boogeyman environment. Rockhounds know the definition of a hand tool and would want to include pry bars to crack limestone and wedges to split shale. I also want to ask if a person with a physical handicap would need to carry personal tools?
RULES THAT IRRITATE #3: § 49.810(a)(3) clarifies that “negligible disturbance” for casual collecting means little or no change to the surface of the land, and minimal or no effect to natural and cultural resources. This proposed definition would specify that in no circumstance may the surface disturbance exceed 1 square yard (3 feet by 3 feet) per individual collector; that in cases of multiple collectors each square yard of surface disturbance must be separated by at least 10 feet; and that all areas of surface disturbance must be backfilled with the material that was removed in order to render the disturbance substantially unnoticeable to the casual observer.
Again, this rule seems overkill and unenforceable. Instead specify that must backfill disturbance and try to leave the land surface as natural as possible—or something like that. Why should there be a difference between fossil collectors and mineral collectors in the disturbance factor? In the USFS lands near Colorado Springs mineral collectors dig “holes”, sometimes large holes looking for quartz and amazonite. The holes are then backfilled (as least by respectable collectors). Examine the petrified wood collecting localities in western Wyoming and notice “holes.” But not all fossil collecting involves digging---what about pounding on limestone. How does one measure 1 square yard? And the rule also means that your collecting friend cannot work next to you---stay 10 feet away! Again, unenforceable, and better stated as suggestions---take care of the collecting site before you leave.
A RULE: • Casually collected resources may be used only for noncommercial personal use, which means a use other than purchase, sale, financial gain, or research.
I understand this rule but is it enforceable? Take a look at specimens “for sale” at rock and mineral shows and see if the specimens have provenance data. The vertebrates contain such but invertebrates? Not so much. The laughable rule is that “minerals” collected from BLM lands (without a permit or claim) must not be sold. Sure. Also, the BLM reg is written in a way that specifies if a collector wants to do “research” on a single specimen they must acquire a permit. Research has a wide variety of definitions. Of course, “research” on an important non-common specimen does not meet the meaning of causal collecting anyway. But if a collector wants to “research” a found specimen to see if it is important, is a permit needed? There is a difference between a professional doing research for publication and a rockhound researching a specimen for identification. What the reg should state is that collectors can’t sell of barter their fossils.
So, there it is, an old curmudgeon’s take on the new fossil collecting rules and regs of the BLM. .Much of the above information was copied directly from BLM material; some was paraphrased. Interested readers may find the entire BLM document in the Federal register at: 43 CFR Part 49 – Paleontological Resources Preservation. Although this is the “Final Rule” the document has a comment period that ended in on 09/01/2022.
In three words I can sum up everything I've learned about life: it goes on. Robert Frost
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