Analysis Of Reasonable Amount Definition

Analysis Of Reasonable Amount Definition

Language regarding “reasonable amount” is found in Supplementary Information and in the draft rule.

The Supplementary Information section states (starting on page 88182):

Proposed § 49.810(a)(2) would establish ‘‘reasonable amount’’ for casual collecting as 25 pounds per day per collector, not to exceed 100 pounds per year per collector. This proposed definition would also clarify that pooling of multiple daily amounts by one or more collectors to obtain pieces in excess of 25 pounds is not allowed. The bureaus determined that the 25 pounds per day per collector, and the 100 pounds per year per collector, are reasonable amounts based on BLM’s long experience with the collecting of petrified wood and other fossils from BLM lands before PRPA was enacted. These amounts represent a balance between Discussions on Draft Federal Rules for the Paleontological Resource Preservation Act (PRPA)

PRPA’s mandate to allow casual collecting and other laws that require the bureaus to protect and manage other natural and cultural resources.

The proposed prevention of the pooling of multiple daily amounts would add clarification and be consistent with existing BLM regulations at 43 CFR 3622.4 governing the collecting of petrified wood.

The bureaus considered defining ‘‘reasonable amount’’ as equaling two quarts instead of 25 pounds, but decided that the use of a weight limit, rather than a size limit, is more consistent with existing collection standards that are already understood by the public and the bureaus.”

The draft rule 49.810(a)(2) states:

“Reasonable amount means a maximum of 25 pounds per day per person, not to exceed 100 pounds per year per person. Pooling of individuals’ daily amounts to obtain pieces in excess of 25 pounds is not allowed.”

Furthermore 49.810(b) states:

In order to preserve paleontological or other resources, or for other management reasons, the authorized officer may establish limitations on casual collecting, including but not limited to reducing the weight of common invertebrate or plant paleontological resources below the amount specified in this subpart; limiting the depth of disturbance; establishing site-specific dates or locations for collecting; or establishing what is common in a specific area.

C​ONCERNS

  1. Proposed “reasonable amount” of 25 pounds and 100 pounds are not consistent with petrified wood rules.
  2. Weight limits don’t take into account fossils on or in rocks.
  3. Excessively restricting “casual collecting” is in contradiction to law which states “The Secretary shall allow casual collecting without a permit…”
  4. Language in the rules gives local offices the ability to restrict “reasonable amount” beyond the baseline set in these rules, therefore the proposed rules should not be so restrictive as to effectively stop “casual collecting” of fossils.

Concern #1 ​The rule analysis explains the bureaus want to make the PRPA collecting limits “more consistent with existing collection standards” used for petrified wood. Limits controlling the amount of petrified wood collected without a permit are found in the 1947 Materials Act

43CFR.B.2.C.3622.49(a)(1):

The maximum quantity of petrified wood that any one person is allowed to remove without charge per day is 25 pounds in weight plus one piece, provided that the maximum total amount that one person may remove in one calendar year shall not exceed 250 pounds. Pooling of quotas to obtain pieces larger than 250 pounds is not allowed.

The PRPA draft rule proposes 25 pounds per day and 100 pounds per year.

The bureaus determined that the 25 pounds per day per collector, and the 100 pounds per year per collector, are reasonable amounts based on BLM’s long experience with the collecting of petrified wood and other fossils from BLM lands before PRPA was enacted.

This statement is inaccurate. The bureaus, while referencing the use of 25 pounds in defining a daily limit, completely ignored the other two components of petrified wood collecting regulation. The law on petrified wood allows three things in establishing limits for collection amounts. First, the collection of 25 pounds per day. Second, it allows the collection of one additional piece per day. Third, the yearly limit on the collection of petrified wood is 250 pounds. The bureaus offer no discussion or explanation of their choice to deviate from the established limits on petrified wood collection, but instead suggest in the discussion that they are consistent with previously established norms, which is not correct. Even though petrified wood is regulated as a mineral resource most fossil collectors view petrified wood as a fossil. The bureau’s proposed rule lacks consistency with petrified wood rules regarding collecting limits based on weight and will result in a high likelihood of confusion among petrified wood and fossil collectors.

While the 25 pound limit may work for small fossils such as crinoid columnals, brachiopods and horn corals, not all invertebrate fossils are small. If a collector comes across a colonial coral the specimen can easily weigh more than 25 pounds. What is a “casual collector” to do? Under the proposed rules they can either leave it to weather away or break it into small enough pieces to take one chunk home. Both these options are contrary to the intent of the law to protect fossils, therefore the proposed rule should have a “plus one piece clause” for fossils free of matrix.

The proposed rule refers to the BLM’s long experience with the collection of “other fossils”. In reviewing laws and associated rules prior to PRPA governing collecting fossils without a permit there are no established limits that restrict the amount. Therefore the claim that defining “…reasonable amounts based on BLM’s long experience with the collecting of petrified wood  and other fossils from BLM lands before PRPA was enacted” [emphasis added] is not accurate and is misleading.

Concern #2 ​When making the comparison of a “reasonable amount” of petrified wood to limits on fossils collecting it should be recognized that almost without exception pieces of petrified wood are collected free from the host rock in which they were formed. In other words, they have no additional non-fossil weight associated with them. Because of this, when a person collects 25 pounds, plus one piece per day, not to exceed 250 pounds per year of petrified wood, they actually have 25 pounds a day, plus one piece and up to 250 pounds of petrified wood at the end of the year. To be consistent with this established rule, fossils found free of host rock should have the same limit as petrified wood.

While the definition of “reasonable amount” based on petrified wood may work for fossils that are free of the rock, this is not the case with most fossils. In fossiliferous rocks on Federal lands in the western United States, fossils are commonly found in or on rocks. This creates a situation where a fossil may weigh an ounce or two but the rock may weigh many pounds. For example, trilobites are commonly preserved as a paper thin carapace on shale or limestone which are impossible to collect separate from the stone without destroying the fossil (in your comments insert a picture of fossil on matrix, if desired). The rule as currently proposed will create a situation where collectors will trim the rock down in an attempt collect as many fossils as possible within the 25 pound limit thus risking the destruction of the very fossils the law is trying to protect. Alternatively, if a fossil is on a rock that weighs more than 25 pounds the collector must either choose to not collect the fossil and leave it to be destroyed in the weather or attempt to trim the rock to bring it within the weight limit thus risking breaking the fossil in the process. Imposing of this arbitrary 25 pound limit on fossils found on or within rock does not help to preserve fossils, but instead puts them at greater risk of destruction and damage.

Because there is a clear difference between collecting fossils that are free from the host rock and those that are not, there should also be a difference in the rules pertaining to their collection. The bureaus made no such attempt in their definition of the term “reasonable amount”. To be consistent with existing bureau rules and policies, collecting of fossils on rocks should use weight limits for rock collecting because this activity is the most similar in nature.

Collecting rocks on Federal land is allowed, however no limits are set by law or bureau rules, therefore local field offices make their own policy regarding “reasonable amount”. The following example is from the St. George, Utah BLM field office. (Note: the screenshot of this webpage was taken when researching what “reasonable amount” were used for rocks and fossils in different field offices. After discussion this “reasonable amount” limit with a BLM official the page “magically” disappeared.)

In this case the BLM defines that a “reasonable amount” of rock fits into the trunk of a car, or a partial pickup truck load, is for non-commercial use, weighs less than 250 pounds (with no annual limit) and is collected using hand tools only. This is an acceptable definition of “reasonable amount” per day per collector when fossils are found on rock. In addition, the bureau should place a 2,500 pound annual limit per collector for rocks containing fossils.

Concern #3​ The excessive collecting limits on amounts are so restrictive that “casual collecting” will be effectively stopped, making the rule contradict the law’s requirement that “the Secretary shall ​allow​ casual collecting without a permit….

In order to visualize the amount that a person would be restricted to under this proposed rule, 25 pounds is the equivalent of a rock the size of US letter sized paper between 2.5 and 3.0 inches thick, depending on the type of rock. The BLM manages 245,000,000 acres of Federal land across the country containing what must be countless trillions of tons of fossil bearing rocks. Establishing such a small allowance for “casual collecting” is neither reasonable or rational when viewed in this context.

For some, fossil collecting takes them and their children or grand children outside nearly every weekend to fossil sites, sometimes many hours drive away from home. As currently proposed, collecting one fossil on a piece of rock weighing 25 pounds will end the fossil hunt for the day and could only be done four times a year. The proposed rule will establish such restrictive limits that it will effectively stop many persons from using bureau managed lands for the purpose of collecting fossils. The use of 25 pounds per day per person and the total of 100 lbs per year is excessive and not in line with the intent of the law that “casual collecting” shall be allowed.  There is no precedence for restricting a legally authorized recreational use of Federal Land so severely.

Concern #4 ​As has been described above the proposed rule is so constraining that it makes “casual collecting” of fossils nearly impractical to participate in. What causes even more concern is they reserve the right for the local field manager to restrict it even further. In 49.810(b) the rule ​states:”…the authorized officer may establish limitations on casual collecting, including but not limited to reducing the weight of common invertebrate or plant paleontological resources below the amount specified in this subpart…” [emphasis added]. Recognizing that there may be needs to restrict the amounts allowed for “casual collecting” due to a variety of reasons it is also reasonable to recognize that local managers know their resource and therefore should also have the ability to increased amounts allowed above the baseline set in the rules. This ensures the bureaus are balancing their requirement under the law to allow the “casual collecting” fossils while also defining “reasonable amount”.

It should be noted that the bureaus in the draft rule did not allow themselves the ability to expand “reasonable amount” to increase the weight allowed per day or per year. This suggest their real intent is not on effective management of the resources and encouraging public engagement in “casual collecting”, but the opposite, with only options to restrict this activity until it is not longer available for the public to participate in.

R​ECOMMENDED​ R​ULE​ LANGUAGE

Based on the discussions above, the draft rule 49.810(a)(2) should read as follows:

“Reasonable amount means (i) for fossils that are collected free from rock a maximum of 25 pounds per day per person, plus one piece per day, not to exceed 250 pounds per year per person; (ii) fossils that are collected on or within rocks a maximum of 250 pounds per day, not to exceed 2,500 pounds per year.  Pooling of daily quotas to obtain pieces larger than 250 pounds is not allowed.”

In addition, 49.810(b) should say:

In order to manage the collection of paleontological resources or other resources, or for other management reasons, the authorized officer may modify limitations on casual collecting, including but not limited to increasing or reducing the weight of common invertebrate or plant paleontological resources the amount specified in this subpart; establishing site-specific dates or locations for collecting. The bureaus may establish collecting areas that have site-specific rules regarding allowances for reasonable amount, common invertebrate or plant paleontological resources, and negligible disturbances.

C​ONCLUSION

It is anticipated that the discussion above will stimulate other ideas related to the proposed rule on “reasonable amount”. Please share your thoughts to encourage dialog. Remember not to cut and paste these comments (form letters will be combined and counted as a single comment) but rather use the points from the discussion above to guide your comments on the proposed rule. Above all else take the time to write and send your comments and encourage all you know to do likewise. Your voice counts!


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