Walter W. Stein
January 17th, 2017
RE: The Paleontological Resources Preservation Act (PRPA) and the Proposed Rule “Paleontological Resources Preservation” for BLM, BOR,NPS, and FWS
Dear committee members, government officials, members of the paleontological community and concerned citizens:
I am writing to express my concerns regarding the new proposed rules for the management of paleontological resources on our shared federal lands. While I thank the scientific community and the various bureaus for their hard work, dedication and passion for preserving our ancient history, I fear that these new regulations need to be revised and rewritten. I would argue that these new, proposed regulations exceed the original intent and mandate of the PRPA, while unfortunately falling short of its noble goals.
The following elements of the proposal are deeply troubling:
1) The proposed rule essentially treats archeological remains, vertebrate paleontological remains and invertebrate paleontological remains as moral equivalents, to be judged and managed in a similar fashion. The authors and supporters of this rule are clearly operating on the underlying philosophy that archeology, vertebrate paleontology and invertebrate paleontology are all one and the same, when the three studies are actually quite different in scope, methodology, and ethics.
Archeological remains have a cultural and historical importance and great care should be taken to account for this. Respect must be given to these sites and to the Native American descendants who often live near these areas. While it is clearly unethical to casually dig up the remains of human ancestors, it is NOT unethical to dig up the remains of extinct organisms that lived in this area long before man was smart enough to draw lines on a map. Ammonites, trilobites, corals, plant fossils, pelecypods, gastropods, fossil fish, fossil mammals and yes, even dinosaur bones are not cultural artifacts. Their closest living relatives have neither the will nor intellect to care. They are geological specimens, important to understanding the history of the Earth, yes, but nothing more. Paleontological resources are not archeological resources and they should not be treated as such. Management policies should reflect those differences.
Likewise, vertebrate fossils are often more rare, more geographically isolated and are more difficult to excavate than invertebrate and plant fossils. Management policies should reflect this. While it might be unethical for someone to come along and pull a vertebra from an otherwise complete dinosaur skeleton, it is not unethical for someone to collect a single brachiopod from a layer containing thousands of brachiopods or a shark tooth from a sandstone containing thousands of shark teeth. While it may require more advanced training (notice I did not say “advanced degree”) to properly excavate and document a vertebrate skeleton, it does not require an advanced degree to pick up a weathered out trilobite from the surface of a barren landscape few people will ever dare to visit. This means that the management styles for these broad classifications of resources must be different. As written, the proposed rule lumps invertebrate collection within the same broad management plan as vertebrate collection.
It is also very important to remember, that these fossils do not come out of the ground with specimen tags. In most cases, particularly with invertebrates, it is impossible to determine whether or not a specimen is rare or significant in the field. It often requires an abundance of fossil preparation and hours of research in the lab to make this determination. Amateur and avocational collectors should be able to collect any invertebrate or plant fossils they find without fear of fines or imprisonment.
SUGGESTION: I would respectfully suggest that you have two completely different sets of proposed rules. One for vertebrate remains which should have tighter permit requirements and one for invertebrate and plant remains which should have little to no permit requirements.
Another option would be to have a casual collection permit and report system for BLM lands, similar to that maintained by the state of Florida (https://www.flmnh.ufl.edu/index.php/vertpaleo/amateur-collector/fossil-permit/) for common vertebrates, invertebrates and plants. This would be the most appropriate methodology to encourage casual collecting and reporting on common AND rare species/locales. This encourages casual collection and reporting rather than discouraging it. More boots on the ground mean more discoveries, more science, more cooperation between avocationalists and academics, free and open research, and more people out there watching for and reporting on illegal activity.
2) The rule grants too much authority to the “authorized officer”. As written, the rule grants to the authorized officer, the power, at their sole discretion and subjectivity, to determine what constitutes: A) a “common” or “rare” fossil; B) what constitutes a “negligible disturbance”; C) When and where collections can take place; D) If a section of land will be open to casual collecting or shut down; E) which repositories receive federal approval; F) which collections can be transferred to working collections or non museum collections; and G) Whether or not a collection still is regarded as having paleontological interest and thus still considered to be “paleontological resource” 49.210 as defined.
This ambiguity and lack of detail will cause all manner of troubles with management of these resources. Who is this oft mentioned “authorized officer”? Is there just one of them for each bureau or are there multiple authorized officers in each bureau for each region? What is their criteria for employment? How is their work monitored and reviewed? Do they have the budget and manpower to achieve these tasks? Is the authority granted herein enforceable and actionable or does the situation set the authorized officer(s) up for failure and thus calls for more draconian measures in the future?
One of the key elements of the PRPA was that “casual collecting” by amateurs, avocationalists and local educators was still allowed and encouraged. As written, the proposed rule fails to do this. In fact, it does just the opposite. The ambiguity introduced by the proposed rule imparts an element of risk on the part of every collector whether they are trained academics or enthusiastic amateurs. The proposed rule stifles paleontology by imposing a high degree of risk on the part of the collector. It says that a “casual collector” should “err to the side of caution” when deciding what to pick up and what to leave in the ground. It does this without ever defining what constitutes a common fossil and what constitutes a rare one. This places the sole burden on the collector to make that call, rather than the authorized federal agent whose really the only one authorized to determine that. Given the penalties suggested (high fines and possibly five years in jail for removing a potentially rare fossil), this imposes high risk on the collector. The rule even points out that avocationalists and professionals “WILL be held to a higher standard”, though this is also never defined! If I was an avocationalist or an invertebrate or plant researcher I don’t think that I would pick up anything on public land if this rule passes, as the risk exceeds the reward. Paleontology on public lands will effectively become the endeavor of only a select few professionals in the approved loop. I don’t think that is what the PRPA intended.
SUGGESTION: Clarify specifically what constitutes a “common fossil” and what is a “rare” or “scientifically significant” one. Finally agree upon a working definition for these. This could be as simple as “all invertebrate and plant fossils are considered common until proven otherwise and may be casually collected for non commercial personal use…”, or as specific as providing a federal webpage that specifies which families or genera of ancient life are considered “too rare” for casual collection. If found, these rare specimens would need to be turned over to the authorized agents as soon as possible. This could be similar in scope to the endangered species list maintained by the US fish and wildlife service. https://www.fws.gov/endangered/
If it is decided that a web page would be best, it would need to be updated annually and it would be the responsibility of collectors to know which specimens could be kept and which couldn’t. In order to assist in identifications, the list would possibly need a photographic field guide, complete with images, measurement data, brief descriptions and geographic or geologic range data in the same vein as the endangered species list mentioned above. It would also be highly beneficial if this guide included a section for “permit eligible” researchers who were interested in publishing on those specimens, to add additional notes, images and their personal contact information.
The “rare” or “off limits” list, would certainly be difficult to maintain, but it would solve much of the current ambiguity in the law. It would also have the benefit of being very flexible, allowing for local variations and needs. The list could apply for all federal lands or it could be altered for different states, regions or rock formations as determined by the authorized agents. For example: In one rock formation crinoid stems might be found in every rock fragment and perfectly reasonable to casually collect. However, in that same rock formation a plate of crinoid calyxes from the same species might be incredibly rare and restricted to collection by academics, by permit only. In one state shark teeth, or dinosaur bone fragments might be quite plentiful, but in another highly restricted. It makes for flexible, local regulation based on the reality of the situation rather than either a broad brush or an ambiguous one. This would be no different than a fisherman going into a river and knowing that they can keep up to three, 14 inch brook trout/day, but need to throw back any sturgeon of any size that takes the bait. This takes the ambiguity and subjectivity out of the situation, setting the rules in concrete each year, while still allowing the authorized officers to determine what is rare and what isn’t based on new data or new resource protection needs.
3) Management of paleontological resources are done with complete confidentiality outside of public scrutiny. 49.75 (1) and 49.25. As written, the rule gives authority to the authorized officer to make determinations on who gets permits, when and where fossil collecting can take place, which repositories are acceptable and which are not, etc. etc. etc.. It also specifies that the locations and nature of all these permitted collecting sites are kept entirely confidential unless permission is granted by the authorized officer. Aside from the fact that this is a possible freedom of speech issue, against the intent of the Freedom of Information Act, AND contrary to good science and the accurate reporting of contextual data, my question is… who is watching the watchers?
Effective governance REQUIRES supervision by a concerned populace. The people need to know if these resources are being managed correctly and efficiently. We can not simply sit back and take your word for it. We need to know how many sites are out there and when and if permits are being issued? Are the specimens being excavated or are they left to rot? How long does the permit process take? How much does the average site cost to maintain and police? How successful are those policing methods? Where are the fossils collected being curated? How often are those organizations reviewed? What organizations are excavating and which ones aren’t? etc. etc. etc. How can we accurately determine any of this if the site locations and field data regarding them are held confidential? How can we do this if key statistical data is withheld?
More importantly, how can we judge any scientific research done on these lands if key information like location, stratigraphy etc. is kept secret? If I am an amateur doing a paper on fossils in a public repository that were collected on BLM lands will I be given that contextual data, or am I not approved unless I’m in the employ of a federally approved repository? What if I’ve sold fossils in the past and want to have access to contextual information for valid educational or research purposes? I’d be surprised if any avocationalists, independents or commercial paleontologists will meet these elitist requirements. Again, this limits the number of people that are “acceptable” when it comes to paleontological research restricting research and collection to a select few in the approved loop.
I understand that the goal is to hide sensitive sites from poachers and vandals, but this strategy of confidentiality has not worked in the past and it will not work in the future. I am an independent, commercial paleontologist. By law, I can only work on private land, and that is perfectly fine by me! As a result, we contact local ranchers and obtain written contracts to work the private land. I have worked one of those ranches now for over ten years. In that time, as part of our educational mission, we have taken over 1500 guests and researchers out to visit our main quarry. Over 1500 people know exactly where this site is! Others can see the location on Google Earth. We are completely open with the site location and freely reveal map data, photos, videos, documentation, site logs, etc. for guests and scientists to review upon request. In all that time, I have NEVER had a single person trespass on the land, vandalize the sites, contact the land owner behind my back or attempt to steal the contract. Why? Its simple… everyone knows who is controlling it. Everyone knows that the site is well monitored by myself and the land owner. It’s protected and that I am managing it. Should anyone ever try to vandalize the property or undermine my contract there would be legal and ethical consequences. They might face jail time if caught or face damage to their reputation if they tried to weasel in. It also means that I need to be on MY best behavior and treat my land owner with the highest level of care and respect. All of this could certainly change overnight (knock on wood), but so far openness and honesty has been the best protection; sunlight the best disinfectant.
On public lands, however, there is openness in access (leading to accidental discovery and vandalism), but no openness in information. The general public has no idea how many fossil locations are on public land or whether or not they are efficiently being collected and studied or left to wither and decay. We have no empirical data regarding vandalism- only allegorical stories. We have no way to independently verify reports to determine what is damaged, the extent of that damage or the intent (commercial reasons, accidental reasons, malicious vandalism, etc.) of the people responsible for the damage. The policy in the past has been to keep locations confidential. To rebury and forget. To hope no one stumbles on a site until the permit process (the following season or seasons) is complete. So far this has not worked. Instead of learning from this mistake and taking this wonderful opportunity to address it, the authors of this rule have double downed with the same failed policy.
SUGGESTION: Do the opposite. Remove the confidentially requirements and publicly mark where sensitive sites are located and who has the current permit. This should be done on BLM maps as well as marked in the field itself. Sites should be mapped, cordoned off, posted with signs and monitored using motion cameras, paid BLM agents and volunteers. Notices outlining penalties for tampering with the site should be clearly marked, both on site and any maps. These areas would then be off limits to everyone not on the permit. There is no ambiguity in this case. No one can claim ignorance or accident should they touch the site. Conversely, no one can claim “proper management” if the site is a mess, never monitored or policed or never excavated. This also will show legislators the extent and importance of the fossils on federal and might help the BLM raise capital to effectively hire more staff to better protect the resource.
4) Casual collecting only allowed on “certain lands”. 49.40 – 49.5 (a)? The proposed rule states in several sections that the “authorized officer may restrict access to an area or close it off from casual collecting”, but does not outline: a) how this is determined, b) if there is a review and comment period, c) if and how people can petition to change that designation, d) when this is done/reviewed and e) how the public is notified (marked in the field, on maps, at the office, on a website). Again, all liability seems to rest upon the collector to know an authorized officer’s determinations with no liability for the authorized officer to disclose or relate this to the public. I can foresee a situation where an amateur collector may have checked one year on the legality of hunting in an area, only to come back in subsequent days, weeks, or years without checking and suddenly find themselves breaking the law. There is also the potential problem of older collections from these sites, that appear to be illegal, even though they were collected prior to the change. AND lets not forget the possibility of an authorized officer, with an axe to grind, cutting off as many areas as they can, because they can. This is not in the spirit of the PRPA and there needs to be some oversight. Good laws protect everyone. This law only protects the authorized officer.
SUGGESTION: Clarify and elaborate on the rule here to prevent future issues. Outline a public review process with notification requirements for any changes to land status.
5) Even research without collection requires a permit 49.50 (b). This section, which requires a permit to conduct research on public lands, is most likely, a violation of the First Amendment and the right to free speech. Research that does not involve collection should never require a permit! Research that involves fossil plants, invertebrates and/or minimal disturbance should never require a permit from the government. Research that attempts to measure stratigraphy or geology of a public region, should NEVER require a permit.
SUGGESTION: It needs to be removed entirely.
6) No leeway for emergency powers. 49.50 (c) Provides no emergency powers to federal agents and employees to remove fossil resources, in the event of an emergency, without a permit. What if a fire or flood event hits an area and there is no time for authorized officers or conscientious collectors to report or beg for a permit? Someone should be exempted in a natural emergency without fear of imprisonment or fine if removal of a specimen is the only way to save the specimen.
SUGGESTION: Provide a separate clause that outlines situations where authorized agents and those they employ, or request assistance from, may collect a fossil resource that is under threat of natural disaster, vandalism, or destruction. Provide guidelines for temporary repository status without a permit.
7) Death of the collector provision. The proposed rule does not address what casual fossil collectors should do with their collections upon their death. Legal loopholes would exist if descendants of the collector decide to sell, trade or transfer the collection. By stating that collectors can keep fossils for their personal collections, but restrict them from selling, trading or transferring it, then the fossils are not really private property OR public property, but rather some ambiguous new classification of property.
SUGGESTION: Not sure how to fix this situation other than to allow these collections to be sold, traded or to require that they be donated to a working educational collection upon the collectors death. Either way, it will be very difficult and expensive, if not impossible, to police this.
8) Requirement of an advanced degree clause 49.60a.1. As written, it is impossible for an experienced amateur or avocationalist to receive a permit to collect scientifically significant vertebrates, invertebrates, or plant fossils. As written it is impossible for them to obtain a permit to conduct non-collection based research. I expected this rule for vertebrate specimens (though I disagree with it), which do require some advanced training to excavate and document correctly, but it is excessive, elitist and unnecessary when applying this standard to invertebrate specimens.
SUGGESTION: Please see my suggestions for a casual collector permit in section 1.
9) 49.75(3, 8) – “Not put at risk” or “protection from harm” clause. These phrases are not defined or clear here. As written, it makes permittees completely liable for anything that happens to the fossils during excavation, including accidental damage, theft, or vandalism.
Despite being responsible, they are apparently not authorized to fence off, post, or alter the site in “any” way. They must also (6) accept that other uses (hiking, biking, ATV racing, hunting, fishing, rockhounding, etc.) may occur in the same area and take steps to avoid or minimize conflict. Section 6 directly conflicts with section 3. Either they are responsible for protecting the site or they are responsible for keeping access open. I can not see how one can do both. This puts researchers in the uncomfortable position of having to defend their sites rather than the authorized officers who are trained for this and ultimately responsible. Permittees should be focused on research and authorized agents and officers should be responsible for protecting and monitoring the site.
Despite making the permittee responsible for the safety and security of the fossil resources under their permit, there is no mention of repercussions should they fail in this task. It does not outline how they are liable or what the penalties, if any, will be, if a site is damaged by guests and personnel under their watch.
SUGGESTION: Change the wording of 49.75 (3) to: “Permittee is responsible for maintaining a safe, secure and well organized site. They are responsible for any research associates, volunteers, or guests that they allow to visit the site. Any excavation or research conducted on site, under the permit must ultimately keep the fossils safe from harm. Failure to do so may result in the revocation of the permit. Authorized officers are ultimately responsible for the security of the site and keep any impact to other land uses to a minimum.”
10) What is a working collection? According to the definition, ” a working collection means a paleontological resource collections that are not intended for long term preservation and care as museum collections.” This sounds like a fantastic idea, but what are the rules governing these collections? If they are not stored at an approved federal repository, then where are they stored? Can they be given away? Traded? Sold? Disposed of in the garbage? Who decides who receives these working collections? Once transferred into a working collection, are they still “owned” by the US government? That is their legal status of title?
SUGGESTION: Provide a more detailed definition of this and a separate section involving the rules governing, care, disposal and distribution of these collections. This could be a great way to ensure public fossils are used in small local museums and small colleges that are not eligible for public repository status and K-12 classrooms that could use the specimens for education. Any distribution must also be fair and balanced.
11) 49.75 (14) The permittee is responsible for curation costs? Section 14 of this clause outlines monetary responsibilities of permit holders. The list includes things like: costs for excavation, data analysis, and report preparation, which are all logical financial costs incurred for any excavation/research project. Unfortunately, it also mentions curation costs in the language, which does NOT seem to be something that most researchers would be able to afford. Does this imply that permit holders are responsible for curation costs in perpetuity (even after their death!)? How would these costs be assessed? Collected? How many researchers will wish to take on this legal and financial burden? This paragraph assumes that the permit holder and the repository are always one and the same. Not sure if that is true. This needs to be reworded or clarified.
SUGGESTION: Curation expenses should be the responsibility of the federally approved repository that is willing to accept the collection.
12) 49.215.a11- The fossil prep clause – As written, “employees [of approved repositories] cannot take any action that results in collection encumbrance, seizure, theft, damage, or other issues.”
Fossil prep, however, can often be damaging to a fossil specimen and some research projects may, at times, lead to the destruction of a specimen (thin sections, acid etching, accidental drops, etc.) Are fossil preparators and conservationists going to be held liable for accidental damage to specimens or research that might lead to damage to the specimens. If so, what are the penalties and who is going to take this risk?
SUGGESTION: Could be a simple fix by removing the word “damage” or changing it to “willful damage”. If not, there should be a separate clause that outlines policies and procedures for fossil prep and destructive research and/or penalties on the repository should damage occur beyond the scope of the agreed upon research plan.
13) 49.300 b/c. The “should have known” clause – In the United States fossils collected from private lands can be bought, sold, traded, bartered, etc. as private property at the sole discretion of the property owner. The PRPA does not in any way shape or form outlaw fossil collecting on private land and this is a very VERY good thing. However, the same fossils that can be found on private land are often found on public land and often just on the other side of the fence. This poses a problem for land regulators AND collectors, because once a specimen is removed from public land it is nearly impossible to know for certain its place of origin beyond the level of rock formation.
Sometimes a fossil that was illegally removed from public lands will wind up in the commercial market. This is very unfortunate and every effort must be made to prevent theft and vandalism of these wonderful fossil resources. Section 49.300 b and c, however, penalize and target unaware buyers and sellers of fossils who, through no fault of their own, may accidentally purchase an illegal specimen, resell or trade an illegal specimen, transport an illegal specimen, or work with/on an illegal specimen.
For example: I will occasionally take on contract fossil jobs to help supplement my income. My clients often buy fossils on the open market and then have me prepare them. I will usually, make my clients sign a waiver stating that they are guaranteeing that the specimen was legally and ethically collected and that any claims against this are the sole responsibility of the client. Unless there is some sort of indication from the buyer that it is illegal though, I would have no scientific way of knowing that a fossil was illegally removed. Unfortunately, according to these proposed rules, I would be just as guilty as the vandal and thief for preparing, transporting and working on it.
SUGGESTION: The phrase “should have known” should be removed.
14) “Negligible Disturbance restricted to 1 x 1 yard square excavations? If any of the language in this rule indicates that it was written by archeologists (or at the very minimum vertebrate Quaternary specialists), with no understanding of Mesozoic or Paleozoic age invertebrate digs, this is it. I have been professionally excavating vertebrate specimens now for over 20 years. I’ve worked on over 30 major specimens and dozens of minor ones. I’ve worked on Mesozoic ammonites, and pelecypods out west and Paleozoic crinoids, trilobites, brachiopods, etc. out east. The number of locations where the sediment was soft enough to excavate in neat 1 x 1 yard grids I could count on one hand. Paleontological resources can be found in all manor of sedimentary rocks where neat grids are not practical nor possible. Dense sandstones, limestones, silicified shales, conglomerates, etc., where many plant and invertebrate fossils can be found, are often too hard for neat square excavations. These often break in irregular fashion impossible for neat rows and grids. Grid excavations are fantastic for soft, unconsolidated rocks, and may be fine for Quaternary vertebrates in Florida and Nebraska, but won’t work for much beyond that.
Also… the specific rule states this: “In no circumstance may the surface disturbance exceed one square yard”. Are you telling me that in all your paleontological knowledge you can think of NO circumstance that might require a collector to dig a larger excavation? I can think of multiple, non-permit requiring, reasons why this might be necessary, including but not limited to: a) removal of overburden, b) the specimen is larger than three feet (common ammonites like Placenticeras or Calycoceras, petrified wood, large plates of fossil plants and invertebrates all can be quite large and breaking them into smaller pieces is ludicrous and contrary to preservation goals), c) work begins on a smaller specimen which leads to a larger one that is beyond the boundaries of the excavation, d) The rock breaks in an irregular fashion exceeding the maximum dimensions, etc. etc.
This one line basically says that anything other than picking up weathered scraps is now banned on public lands. If that is the goal and the intent, then please just say that.
SUGGESTION: Please remove this section entirely and replace with something similar to: “negligible disturbance means low impact excavations completed without the use of any power tools or heavy equipment.” If necessary to add some quantification then perhaps: ” not to exceed a maximum depth of 1 meter and width of 2 meters”. Any excavations beyond this will require a permit.” Remove the separation between diggers otherwise you will have gopher holes all over the place. Also, please use meters not yards as the standard unit of measurement.
In summary… the protection of fossils on our shared public lands is an issue where all sides should be on the same team. We all want to share, protect and work with America’s fossil treasures and we can and we should. Working together, under a clear, well thought out, management plan, we can ensure that scientifically significant specimens go into a public repository, while at the same time the rights of rockhounds and fossil hunters to enjoy their hobby can be protected. The PRPA is not perfect, but it is a step in that direction. These rules as written, however, require significant revisions to ensure that all sides are being represented.
You have, if you choose to accept it, an army of ready and willing volunteers, with eyes and boots on the ground, to help discover, excavate, research and protect our wonderful fossil resources. It is now up to you to decide whether you wish to accept that help or disenfranchise those who offer their passions for free.
Thank you for allowing this forum and the time to express our views on this very important subject!
Walter W. Stein