This is part of a series of posts drilling into some of the most unworkable parts of the proposed regulations. It seeks to demonstrate not just where the issues are, but also propose workable solutions.
The actual law (Paleontological Resources Preservation Act) interpreted by the regulations provides a casual collection exception. This exception allows amateurs to collect certain types of fossils without a permit. This is how casual collecting is defined:
49.810 – 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.
One of the most fatally flawed areas of the regulations is the proposed definition for rare invertebrate and plant paleontological resources. Here is how it is defined.
49.810 (1) Common invertebrate or plant paleontological resources are invertebrate or plant fossils that have been established as having ordinary occurrence and wide-spread distribution. Not all invertebrate or plant paleontological resources are common.
So much for providing any clarity in the definition. I don’t know what they mean. Do you? Does the enforcement officer? Do they? It is left totally up to interpretation, and everyone will have a different interpretation. Furthermore in their analysis section they state:
“Under proposed § 49.810(a)(1), only common invertebrate and common plant paleontological resources may be casually collected. 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 widespread distribution. Although these particular resources may be common, they are still paleontological resources as defined in PRPA and the proposed rule. That is, they have paleontological interest and provide information about the history of life on earth. Not all invertebrate or plant paleontological resources are common. If the resources are not common, they may only be collected under a permit. It may not always be possible for a collector to identify in the field whether a fossil is common. When in doubt, collectors should err on the side of caution and collect only the resources that they know are common. The bureaus may hold a trained amateur, avocational paleontologist, or professional to a higher standard of knowledge than the general public about whether or not a fossil is common. If a knowledgeable collector makes an unanticipated discovery of an uncommon paleontological resource while casually collecting, that collector shall not collect that resource because he or she is not authorized to do so. Instead, the collector should alert the relevant bureau. If the collector wishes to pursue collection, he or she must obtain a permit to collect the uncommon resource. If the collector does collect the uncommon resource without a permit, that collector may be subject to penalties. “
One of the key elements of the PRPA was that the “casual collecting” of fossils was still allowed and encouraged. As written, the proposed regulations fail to do this. In fact, they do the opposite. The ambiguity introduced by the proposed rule imparts an element of risk on the part of every 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, who is really the only one authorized to determine that. Given the penalties (high fines and possibly five years in jail), who would want to risk it?
The rule even points out that avocation collectors and professionals “WILL be held to a higher standard”, though again this is also never defined. If I was an amateur collector, particularly a knowledgable one I don’t think that I would ever pick up a fossil again on public land if this rule passes. The significant risks exceed the reward.
Even worse the collector is instructed to leave any rare, or potentially rare fossils exposed in the field. This is done without any process in place or resources allocated to assess, and collect them later. The natural environment is not static. Erosion and weathering are the primary destroyer of fossils. With large vertebrate fossils, the time it takes erosion to damage/destroy them is typically measured in years or even decades. Invertebrate and plant fossils which are frequently preserved as no more than a thin shell or carbon film on a rock are much more susceptible to mother nature. For them this timeframe is often days and weeks.
Instructing a collector to leave a rare and potentially important invertebrate fossil in the field is basically ensuring their destruction by the elements and loss to science. That does not sound like very good management policy to me.
So what is a solution for this?
Key elements of proposed solution
- It works within the constraints of the law.
- It is handled under the casual collecting guidelines (no new permit process).
- Eliminates risk on collectors of inadvertently running afoul of the law.
- It allows important fossils to be collected, so they don’t erode to dust.
- It makes sure that important specimens get into a repository without trying to push the heavy burden of locating one onto the collector which would be impossible in most circumstances.
- It’s actually workable.
Update the definition of rare invertebrate and plant paleontological resource to read
“We recognize that not all invertebrate or plant paleontological resources are common. However, invertebrate or plant paleontological resources will be considered to be common until determined otherwise.”
- The agencies will publish guidelines of what might be considered to be a rare invertebrate or plant fossil online. They may choose to define this broadly or granularly, it’s flexible. The important part is it’s publicly accessible, in a single place online and has historical change tracking. Simple wiki software would provide an easy, cost effective solution. It’s in there best interest not to define it excessively broad as it will create a lot of extra work in the next bullet points.
- If a “casual” collector collects a fossil that meets one of the guidelines of being potentially rare they must submit a report of it to an authority (TBD by agencies) within 90 days of collection. This authority might be a state paleontologist, BLM expert, etc.
- This authority may request photos or physical in-person inspection of the specimen to determine whether or not it meets the criteria of a rare invertebrate or plant paleontological resource.
- The authority is required to respond within 90 days of the report by the collector.
- If they determine it is a rare invertebrate or plant fossil, the agency will provide an approved repository that will accept the fossil. It is the responsibility of the agency to arrange this, not the collector, as this would be impossible for most amateurs. If no repository is willing to accept the fossil, it is obviously not important enough to be considered rare.
- The collector then has 90 days to hand over the fossil to the repository.
- If the authority fails to respond to a report within 90 days, it is assumed that the specimen is not a rare.
- There is no “reach back”. If the authority determines the specimen is does not qualify as a rare paleontological resource, either in writing or by failure to reply within 90 days they can not come back later with a different determination.
- If the specimen is deposited in a repository, the name of the collector is recorded along with it so that they get credit for the discovery. This is an important piece, to help provide additional incentive for the collector to follow the process.
The no “reach back” clause is absolutely critical for this to work. It provides the collector with some sense of security that they won’t be approached years later and asked to surrender a specimen that has already been reviewed and determined not to be rare. Particularly in the case where substantial amounts of time/money may have been invested by the individual on preparation. I certainly wouldn’t want to spend 100+ hours preparing a trilobite fossil and then be asked later to involuntarily surrender it with no compensation for my time because someone wanted to use it for a museum display. If the decision can be changed later on, it eliminates much of the incentive to make a report in the first place.
Specifying clear time limits such as 90 days is also critical. You don’t want the whoever is the authority not responding or responding years later which is unfortunately too often the case with government agencies.
Some general guidelines that should be following when defining what might be potentially rare.
- Rarity should be correlated with scientific importance. Just because a specimen is an exceptionally nice, aesthetic specimen does not necessarily make it rare.
- Just because a species is currently undescribed does necessarily not make it rare. Many very abundant fossils are still awaiting scientific description, not due to lack of material, but lack of people doing work on them.
- If enough material of the particular species or type of fossil is already stored in repositories for scientific purposes, it’s not rare.