The End of Petrified Wood Collecting on Public Lands?

The End of Petrified Wood Collecting on Public Lands?

Petrified wood represents a stone of unique interest in the hearts and minds of the many collectors found in virtually every part of the world. It is prized both as a gemstone by lapidary and jewelry artists, and as a fossil by amateurs and professionals alike. The most prized specimens are highly silicified and easily polished into magnificent display pieces. Many texts have been published for the petrified wood collecting community to celebrate the incredible diversity of both aesthetic beauty and natural history that these specimens represent.

Human fascination with these curious and abundant stones predate written history as petrified wood has been shaped into tools and used as grave markers by cultures long ago. While petrified wood collectors can be found in virtually every country, the hobby has flourished in the United States for the past half century due in part to an act of congress in 1962 that set aside the many deposits of petrified wood on public lands for the free use of the public. Western states in particular are blessed with numerous petrified wood deposits, with most states having scores of collecting sites available to rockhounds with numerous field guides published with maps and directions for finding the prized stones. The result has been an abundance of beautiful specimens housed in both private and public collections that have provided a source of wonder and appreciation of both natural history and the majesty of natural forces to produce stones that fascinate young and old alike. As trees are easily caught up in the natural forces of floods and volcanic activity, occurrences of petrified wood are quite common. Yet, no gem, mineral or natural history museum would be complete without these colorful fossils. Even the entrance to The Smithsonian is guarded by a pair of massive petrified logs. Inside, specimens cut, polished and eventually donated by the enthusiast community await visitors to inspire wonder at the geologic forces that can turn a tree into a gemstone.

Unfortunately for this community, new regulations being put forward in support of a little known piece of legislation contained within a 1,200 page omnibus bill passed in 2009 threaten to not just put an end to petrified wood collecting, but to actually criminalize, for the first time in US history, the arguably wholesome activities that these citizens have enjoyed for many generations. The Paleontological Resource Protection Act and the Federal Regulations published in support of it (final for the USFS, proposed for the BLM) have come under fire from the amateur and recreational community for the indefensibly parochial walling off of our public resources that they represent. Modeled after regulations protecting vital and fragile archaeological sites and practices developed for vertebrate paleontology, the government paleontologists working on behalf of the USFS took it upon themselves to seize an opportunity to eliminate apparently unwelcome participation on the part of recreational and amateur collectors despite their well documented contributions to paleontology. By turning a deaf ear to the public comments objecting to overly restrictive regulations that went far further than the Act itself authorized, they imposed their desire for even more restrictions than the Act called for.

Although the bureaus overseeing public land have long recognized non-powered hand tools as acceptable for recreational pursuit of rocks, minerals and yes, even invertebrate fossils, the government paleontologists dramatically narrowed the historical definition of hand tools to eliminate anything you need two hands to operate! This despite the fact that the Act already defined casual collecting as “surface collection or the use of non-powered hand tools resulting in only negligible disturbance to the Earth’s surface and other resources.” They also settled on a definition of “negligible disturbance” (which the Act left to them to define) that borders on the absurd and virtually eliminates any real possibility of field collecting. And that’s not even the worst of the overreach. Based on the published regulations, any aspiring young scientist that would dare attempt to write a paper based on a leaf imprint or fossilized shell she found on public land would be subject to either 2 years or 5 years in prison if she submits her work for peer review or publication. Collecting for research requires a permit. These public servants brazenly chose to define amateur collecting and any study of non-vertebrate fossils as being outside of any legitimate use of public land (another topic they were not tasked to define) effectively choosing to criminalize not only the countless, documented contributions that amateurs have made to science but also walling off what once acted as a gateway into STEM careers for our nation’s youth.

The good in all of us would like to believe that these were unintended consequences, but the record shows otherwise. Not only did these bureaucrats refuse requests to meet with the public to discuss regulatory impacts prior to publishing the new regulations, they refused to even acknowledge that the regulations they were imposing on the public would have any chilling effect on participation by these amateurs. Submitted input noting that criminalizing research by amateurs would reduce amateur research was dismissed as “conjecture” that lacked substantiation on the part of the public respondents to the USFS regulations. These dismissive responses were made all the more disingenuous by the suggestion that anyone wishing to do research was free to apply for a permit. But since few developing amateurs, let alone high school students, could be expected to have the now codified master’s degree in paleontology or equivalent experience necessary to obtain a permit, the answer smacks of mockery. It’s hard to imagine a legitimate motivation that would justify any of these actions, leaving a shell shocked public wondering “why?” Who could possibly be expected to benefit by taking steps that even the most casual observer can see would lead to a reduction in the number of future paleontologists?

Whether their motivations were pure or sinister, lost in their brazen land grab were the future generations of scientists who might have developed basic field and science skills by collecting common invertebrate fossils, not to mention a cherished form of recreation enjoyed by thousands of amateurs that, in the published findings of the U.S. Senate Committee on Energy and Natural Resources, have made invaluable contributions to science. Rather than recognize and embrace the value of cultivating amateur participation, as been past policy since this nation’s founding, the USFS official response suggested that amateurs should be grateful that they were left with anything. The public is reminded (8 times) in the comments response that “The Act and the regulations explicitly establish a legal basis for the activity of casual collecting of paleontological resources for the first time” without acknowledging that said “legal basis” amounted to virtually nothing when compared to privileges historically granted to amateurs on public lands. The truth is that the few regulations that existed prior the drafting of these restrictions grouped amateur collecting of nonvertebrate fossils into the same collecting rules as other rockhounding activities including petrified wood collecting – namely non-powered hand tools, 25 lbs. per day plus one piece and no more than 250 lbs. per year. That legal basis was established in multiple public land use regulations prior to the drafting of these regulations for the USFS [e.g. Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998] and mirrored the decades old recreation management policies used for petrified wood. Since the Act stipulates that the various bureaus should coordinate their regulations, it seems reasonable that best practices from previously issued regulations on the same topic would have been considered.

I admit that this is a fairly scathing indictment of the bureaucrats who pursued these regulations as much as it is the regulations themselves. But I think a clear understanding of the actions and apparent motives taken by the small number of individuals involved in drafting the regulations and responding to the public input is essential to both deciphering and predicting how these regulations can be further abused to criminalize petrified wood collecting. In the Act itself, the “saving” clause states that “Nothing in this subtitle shall be construed to … invalidate, modify, or impose any additional restrictions or permitting requirements on any activities permitted at any time under [previous federal laws].” On the surface, that would seem to leave petrified wood collectors immune to these onerous restrictions and indeed there is even some prose to suggest as much in the regulations. But the same bureaucrats that empowered themselves to re-define non-powered hand tools and criminalize the use of fossils in research that were gathered legally under casual collecting rules, also authored loopholes for themselves to try to get around this apparently unwelcome mandate. In the final version of the USFS regulations, petrified wood is not a paleontological resource and is not subject to the dramatically reduced collecting limits or the harsh criminal penalties for violations of the published regulations… unless, as the USFS regulations state, the appropriate authority determines (under a set of guidelines) that a petrified wood site is a paleontological resource. Uh oh…

If you’ve been following closely, you might now be concerned who this authority rests with. And as you may appropriately fear at this point, it is indeed the same paleontologists who saw fit to publish the indefensibly restrictive regulations on other nonvertebrate fossil collecting by amateurs. And with the loophole they gave themselves requiring literally nothing more than to consult with the same agency paleontologists who helped write these regulations, they impart to themselves the authority to wipe out the savings clause of the original Act. The only barrier to this action – applying “scientific principles and expertise” and getting staff paleontologist buy in before publishing the new restrictions in writing. This clause went largely unchallenged in the face of all the other restrictions, but it gave the authors a tool that would require no further review to expand the scope of the regulations into areas the Act supposedly preserved for petrified wood collectors. Once they’ve met that vague internal review standard, they can simply declare any petrified wood deposit to be a paleontological resource and extend the same suffocating rules to petrified wood collecting.

It’s at this point it behooves petrified wood collectors to take notice of exactly what such an action would mean to them and their collecting. For starters, it would also be criminal to mislabel or misidentify a piece of petrified wood, by accident or otherwise. The largest piece you could collect from a site would be reduced by 90% from a maximum of 250 lbs. before a permit is required to a mere 25 lbs. and your annual collecting limit would shrink as well. The limit of 25 lbs. plus one piece was not set arbitrarily – this the common range of sizes for sections of petrified trunks to be found in as it reflects the typical range of sizes that trees grew in, as well as practical limitations on what can be safely removed by non-powered tools from the field. Reducing what you could take from the field to a maximum of 25 lbs. would encourage those who find typical size trunk sections to destroy them with hammers (since that all you can use in the field under the regulations) in order to obtain a few broken bits to take home. You might not be able to cut and polish a piece of petrified wood without written permission as this would be construed as consumptive analysis. Collectors would lose the ability to donate their petrified wood collections to museums and museums would almost certainly be reluctant to consider accepting them without the permits required for paleontological resources for fear of losing standing. Given the “exclusivity” requirements that staff paleontologists packed into the permitting process, virtually no petrified wood collector in the hobby would qualify for a permit. You couldn’t publish a research paper or give your legally owned petrified wood specimen to a researcher for them to include in a publication. And regardless of the terms under which you obtained your petrified wood, you would no longer be permitted to sell it. The regulation strictly prohibits collectors to “Sell or purchase or offer to sell or purchase any paleontological resource if the person knew or should have known such resource to have been excavated, removed, sold, purchased, exchanged, transported, or received from National Forest System lands.”

You might be tempted to think the pieces you already own legally would be exempt from these rules and be grandfathered in somehow. But a closer look at the regulations reveals that immunity extends only to someone that owns a piece prior to the passage of the act in 2009. The USFS regulations state that the criminal and civil penalties “do not apply to any person with respect to any paleontological resource which was in the lawful possession of such person prior to the date of enactment of the Act.”

Read it carefully and you see that you could legally sell it, but nobody could legally buy it since only the person in possession before 2009 is protected from prosecution through this provision. Even if that transaction escapes scrutiny, a receipt for a legal purchase after 2009 would not entitle the new owner to transfer it again later. It’s also worth noting that the regulations, as comprehensively stifling as they are, provide no mechanism for documenting existing inventory or ownership. Since provenance has never been legally required for petrified wood, there is no precedent or known practice for establishing when a piece of petrified wood came into your possession, let alone when it might have been collected or under what version of which regulation. It’s an impossible task to go back after the fact and establish documentation for time periods where this was not an expected, let alone required practice. Petrified wood in rough form, like other raw materials used in the lapidary arts, tends to change hands many times before it is finally prepared into a display specimen. I am like many rockhounds and have piles of rough rock much of which that was collected by others decades ago.  I can only make intelligent guesses as to where they originated. Sure, the burden of proof would rest with the accuser – but the cost of defending rests with the accused.

Complicating matters further, display specimens are routinely traded among enthusiasts in a thriving global market, but by numbers those who collect this stone for purely aesthetic reasons outnumber those who appreciate it as a fossil specimen and provenance is rarely maintained among aesthetic collectors. This part of the petrified wood community, as is observable in online trading communities which are no doubt disdained by the academic purist community, would be particularly vulnerable to not knowing which site a particular petrified wood specimen likely came from, let alone when.

All of this becomes the new reality that a petrified wood collector must contend with after the minimal protections for this decades old legal hobby are breached with the stroke of a pen. Why would they want to? I don’t know. But I do know that the regulations leave far too much leeway to bureaucrats who have clearly demonstrated they have no respect for or see any value in a public that is engaged with natural history in the field in any meaningful way. They’ve ignored regulations governing the same activities that were previously in effect, electing to redefine every aspect of casual collecting even when the act did not task them to do so. And they aren’t finished yet. The proposed BLM regulations don’t even contain the exemption of petrified wood from the definition of paleontological resource that the USFS regulations do.

Whatever motivated the staff paleontologists, it has clearly furthered the erosion of trust between the public and the bureaus. In my amateur opinion, provisions added to the regulations that are not specifically required by the Act are likely to be struck down if challenged in court. Research can be defended on free speech grounds and the savings clause of the Act could probably undo overreach in other areas. But defenses like this are expensive. Many know that John Sturgeon won a unanimous victory at the supreme court over his public land access dispute with the US Park Service. But what many don’t know is that it cost him several hundreds of thousands of dollars to mount his successful defense, and the Park Service isn’t liable for any of it.

The best hopes for the petrified wood community are to provide comments, in our own words, concerning the unjustifiable overreach a small team has empowered themselves with while also breaking regulatory precedent without justification or study, and demanding firmly but clearly the restoration of meaningful user rights for recreation and protection for traditional amateur participation in the collection and study of nonvertebrate paleontological resources on public lands. Submit your constructive comments, in your own words, to the BLM before Feb. 6th. While I’ve made it a point to turn the lights on harshly and brightly here, outrage is best tempered with reason in submitting those comments.

There is reason to hope that the bureaucrats and staff paleontologists might be more inclined to listen this time than they demonstrated in the drafting of the USFS regulations. Rep. Ryan Zinke is both a geologist from the western states and the new nominee to head the Department of the Interior. In his testimony before the US Senate Energy and Natural Resources Committee, rep. Zinke offered a three step plan for the Dept. of the Interior if he is confirmed. The first step is to restore trust with the people and transform a department that in too many cases has become what he described as a “deaf adversary”. He’s promised to run the department with a key philosophy of “management by objective science” and highlighted his desire to teach and incentivize millenials about the outdoors and restore the value and enjoyment of the great outdoors in our nation’s young people. I think as busy as the new Secretary might be, he would be hard pressed to find a better example of the problems, or a better opportunity to address them in a more balanced fashion than this set of regulations. To that end, I would encourage everyone who is sending comments to also contact Rep. Zinke and ask him to personally review these regulations and the comments from the public before allowing them to be published. We are a small community, but I suspect we are a familiar one to Secretary-nominee Zinke.

5 thoughts on “The End of Petrified Wood Collecting on Public Lands?

  1. There aren’t enough scientists or paleontologists on the planet that could be negatively affected that could justify such a law. No the distractive nature of this “law” has to do with power and money and little else. The power aspect is the institution of laws that though not enforced at any time, may be brought forth at such time as it would be advantageous during prosecution for any “crime” related or not. The money thing is simple. Once a group or “panel” is given complete authority of control then they also have the ability to charge for access to the former public property and eliminate any persons not so “licensed” to enter that property for any purpose. Enacting such a law will weaken or destroy any public trust for the federal government.

  2. Being a Geology student with a Paleontology class next semester this proposal would eliminate any further studies for me as the proposal takes away my right to gather petrified wood, research it or publish a paper due to a fear of prison. Decent citizens life can be ruined forever for pursuing what they love to do. I will submit more detailed comments after I do more research.

    1. When you submit your comments to the BLM, keep in mind that the issue is that they have not been clear in the proposed regulations that petrified wood collecting is strictly protected as a public right in existing federal law and regulations already passed. As such, any further restrictions on petrified wood are inconsistent with the “savings” provisions of PRPA. The USFS regulation authors chose to ignore this fact and instead gave themselves a loophole to declare petrified wood as subject to this law after the same people who wrote these regulations apply the incredibly vague standard of “scientific principles” in doing so. It seems absurdly cynical, but the trickery encoded into the USFS regulations makes them immune to objections about interference with petrified wood collecting because they haven’t actually done it yet. At the same time, they also set up a mechanism that does not require public scrutiny in order for them add petrified wood to the list of regulated fossils at a later date.

      We need the BLM regulations to be explicit in the exemption of petrified wood in the definition of a “paleontological resource” in the regulations that PRPA requires the BLM to draft. And under no circumstances should the BLM regulations include the backdoor double-speak that the USFS regulations included.

  3. Okay I hear you on selling, that does sometimes get out of hand and abused. But what about us that collect and polish petrified wood for our own enjoyment and collections? Do you know that petrified wood out in the environment will not last much longer, so this stuff about saving it for future generations is bull. There will be none left to study if we leave it out in the weather much longer, I know that the State Paleontologist have been studying the effects of weathering on petrified wood, and they know it is disappearing due to weather erosion.( Ask the State Paleontologist to show you their findings on Petrified Wood erosion) We need to collect it now before it is gone, polish it which protects it from further erosion put in a collection for future generations will have something to see and study.

    1. If you can’t legally transfer it at some point down the line (which you would not be able to do if it were gathered under “casual collecting” rules currently in force for USFS lands) then you haven’t saved it from a similar fate. It cannot be exchanged, transferred, sold or donated.

      I would also caution that “divide and conquer” is not something you should allow yourself to be lulled into without pausing to think what your hobby would look like without the dealers who bring stones to gem shows or trade online. No one should be allowed to sell something that was collected illegally, but if that is a rampant problem in petrified wood collecting, I haven’t seen it. Most dealers are hobbyists that have invested more in equipment and stone than the typical amateur – they’ve just pursued it longer and further. The extreme ideology that lead to these regulations in the first place would like nothing more than to simply ban all commerce in fossils of any kind as a meaningful step in the furtherance of their exclusivity agenda.

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