Highlighted Comment: Craig Stevenson

Highlighted Comment: Craig Stevenson

Remember the public commenting deadline for the proposed Paleontological Resources Preservation Act regulations is Feb 6th.  Please lease a comment on the regulations themselves to make your voice heard.  Below is an exceptional comment just posted on the regulations by Craig Stevenson.

RE: Federal Register Number 2016-29244

To Whom It May Concern:

I wish to comment on the Department of the Interior’s proposed regulations for Bureau of Land Management’s (BLM) lands for the Paleontological Resources Preservation Act (PRPA) of 2009.

While I fully support most of the proposed regulations concerning vertebrate paleontology, I find that regulations regarding resource collections by professional or avocational invertebrate paleontologists and much of the regulations regarding all collections of invertebrate and plant fossils have been improperly developed without regard for the impracticality of following the regulations as currently written and the impracticality of enforcing these regulations on lands managed by the BLM and other federal land management agencies. My analysis is that these regulations have been developed in a virtual “vacuum” and require a broader vetting in both professional and public forums before finalization. The regulations pose as much uncertainty as they attempt to clarify.

While the PRPA is a reasonable, overarching concept in law, the existing U.S. Forest Service (USFS) regulations and these regulations proposed for BLM lands exhibit a lack of understanding of the realities of both hobby collecting and scientific collecting with regard to invertebrate and plant species. As an amateur collector, I am offended by the apparent lack of understanding and recognition of the scientific contributions of amateurs that these regulations represent. There is also a failure to understand the potential negative effects to science by imposing such draconian regulations on a popular hobby.

Although the PRPA identifies that:

“In General- The Secretary shall manage and protect paleontological resources on Federal land using scientific principles and expertise. The Secretary shall develop appropriate plans for inventory, monitoring, and the scientific and educational use of paleontological paleontological resources, in accordance with applicable agency laws, regulations and policies. These plans shall emphasize interagency coordination and collaborative efforts where possible with non-Federal partners, the scientific community, and the general public.”

It is clear that the intent of the proposed regulations is to create a series of hurdles to casual collecting that do two things:

  1. Make collecting as difficult as possible for the amateur.
  2. Sever any ties between amateurs and professional invertebrate paleontologists.

These proposed regulations are clearly out of line with the stated purpose of the PRPA.

It is readily apparent from my reading of the proposed regulations that they were developed with little input from professional or avocational invertebrate paleontologists. It is also apparent that the proposed regulations may have also been developed with little or no input from the BLM. The regulations read similar to those for the more restrictive vertebrate paleontology applications, than to long-held BLM regulations regarding invertebrate paleontology. In fact, in Instruction Memorandum No. 2009-113, the Bureau states:

The PRPA of 2009, Public Law 111-011, Title VI, Subtitle D, does not change the Bureau of Land Management’s (BLM’s) basic policy for allowing casual collecting of reasonable amounts of common invertebrate and plant fossils from public lands for personal use without a permit. Nor does the PRPA change the prohibition on bartering or selling common invertebrate and plant fossils.

If, as this indicates, the BLM had reviewed the PRPA and identified no significant reasons to change policies, there is no demonstrated reason for such drastic regulatory changes at this time.

The PRPA directs the development of regulations within the Department of the Interior and across all federal lands. Each of the land management agencies have different mandates for managing these lands and, as such, attempting to provide completely consistent regulations is not practical. The proposed BLM regulations are largely an adoption of the existing USFS regulations. Since the proposed regulations were not developed for application to lands managed by the BLM and, as such, are arbitrary and capricious. This inappropriate situation requires immediate change.

Executive Order 12866, Section 1, states, “Federal agencies should promulgate only such regulations as are required by law” and are “necessary to interpret the law. The proposed regulations clearly exceed this direction in many areas.

In the Bureau’s explanation of the proposed regulation it is related that § 49.810(a) restates the PRPA definition of casual collecting. This “restatement” deviates from the wording of the law and the intent of Congress.   It is therefore not appropriate.

While the allowance for collecting “common” invertebrate fossils and “common” plant fossils remains permitted in the proposed regulations, the clumsy attempt to further define the common species only further confuses the situation. The developers of the proposed BLM regulations attempt to explain:

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 …………

Since so many of the Bureau’s invertebrate paleontology resources are most often managed by geologists and archeologists. I have little confidence that many of those personnel will have the time or the inclination to become knowledgeable in this discipline to make informed decisions about which fossil invertebrates or plants are common or not. Additionally, without such knowledge, those personnel would be unable to competently issue permits for collection of uncommon species and I would question their ability to issue permits and manage collection data as required for professional invertebrate paleontology collection applications. Problems have occurred in just such situations under less stringent regulations.

Approximately eight years ago, Dr. Fred Sundberg (PhD) applied for a permit to collect invertebrate fossils for research in the Tonopah Resource Area of the Battle Mountain District. As in many disciplines the number of graduates produced by universities exceeds the number of jobs available and Dr. Sundberg has made a living teaching high school biology for 25 years. Despite extensive field experience, a masters, a PhD, nine publications in the Journal of Paleontology, Palaeontology, Paleobiology, and Lethaia, as well as presentations at international travel and attendance at numerous professional meetings Dr. Sundberg was denied a permit by the resource area geologist, largely because he is not affiliated with a university or museum. Understanding the casual collecting rules in the Tonopah Resource Area at the time, he could have collected as a hobby collector, since the local authority would not recognize his standing. In practice to make a finding that Dr. Sundberg had violated any rules the Bureau would have to admit that it erred in denying his permit application. However, Dr. Sundberg believed that he had no choice to abandon that effort and pursue collecting in another area where his standing was recognized. With the more stringent regulations proposed, can we be assured that viable science will be properly permitted?

If regional paleontologists will be assigned to develop lists of common or uncommon plants and invertebrates, I have to ask how many are trained invertebrate paleontologists. This may seem like nit-picking, but all M.D.s are medical doctors, but not all M.D.s are vascular surgeons or pediatric oncologists. I would surmise that none of the federal regional paleontologists are so qualified. Of equal importance is whether regional and local paleontologists will be afforded a reasonable amount of time to develop such lists as the proposed regulations require. It has been my experience that regulation developers rarely include budget and personnel time considerations.

I reiterate that I have no confidence that most federal employees currently managing invertebrate paleontology can fairly determine what specimens are either common or uncommon.

I have been collecting for more than 15 years. I have attended conferences with professional invertebrate paleontologists and read hundreds of professional papers. Yet I find my own knowledge limited. There have been few times in the field where I can determine immediately that I have collected something “uncommon” or rare. Usually the specimen must be properly prepared and then may take weeks or months of studying literature to properly identify. If I have difficulty identifying specimens offhand, how will commonality be determined by various agencies and districts or resource areas?

We have to be careful to recognize that if a species is determined to be and listed as uncommon its actual abundance can even be suppressed by this determination, as collecting in certain areas are likely to be avoided.

Additionally, invertebrate fossil species are often only identified from parts. Parts may be known to be common in a scientific context. Are we to assume that partial or complete specimens of these types of common species would require a permit? I am aware of one USGS publication within which dozens species were almost completely described from parts. However, in the ensuing years a great number of species have been found partially or fully articulated. Errors were made in descriptions in the original publication, but no invertebrate paleontologist has yet made the appropriate corrections. Should the BLM make a determination from the species described in the original publication that complete specimens of most of these species are uncommon or rare, they would be incorrect.

Since there is no scientific definition of common, the most likely science-based method to determine which fossils are common is a literature search of the fossil species occurring on BLM lands. In the interest of thoroughness and correctness, such searches must go beyond BLM lands to more accurately assess actual commonality or rareness of species.

Even a literature review relies upon whether random academics have an interest in some aspect of one or more species. That research may or may not involve a discussion of a species’ commonality or rarity.

There is also the chance that a species may be scientifically lumped or split into various subspecies. Some of these subspecies have been so named 100 years ago by early invertebrate paleontologists, such as Dr. Charles Resser, who many times designated new species by spatial distances, rather than physical differences. Sometimes the spatial distances were as small as 21 miles.

Much of the morass that Resser and others created by has not been untangled 90 years later. So will the BLM and USFS personnel find that the Resser’s trilobite Albertella sampsoni can be specifically differentiated from Albertella helena? How will BLM personnel make that determination? Will such determinations be valid without publication in scientific publications and vetting according to scientific organizations and forums? How will the Bureau handle conflicting determinations between various districts and adjacent agencies? Any such determinations could easily be open to contest as of arbitrary and capricious rulings.

If I suspect a specimen might be uncommon these regulations require that I leave it in place and apply for a permit to collect it. Shall I lay it on the ground where it may be surface collected by a less knowledgeable collector without penalty, or am I to rebury it and possibly lose it to science?

To a great degree, I am frustrated that these regulations reflect a complete lack of understanding of the role of amateur paleontologists in discovery and research. Amateurs or casual collectors are often an invaluable resource to the professionals. Now that link is being intentionally severed for no good purpose.

Is science being properly served here? What happens to a fossil that is not on the common list and therefore cannot be collected by a casual collector? If they are an average collector, they will collect the specimen because they lack the ability to identify if it is common or not. So the weight of the regulations is directed at the “knowledgeable” collector.

The “knowledgeable” collector must not collect the specimen and must leave it in the field. The specimen would then be subject to deterioration due to weather. Varying types and compositions of rock deteriorate at different rates. I do not consider such direction to be wise. More than invertebrate paleontologists, vertebrate paleontologists are exposed to the vagaries of natural decay of exposed specimens. More thought and consideration should have resulted in better protections for specimens if science was the regulatory developers’ primary concern.

Let us consider that an uncommon or rare specimen has been discovered in the field by a “knowledgeable” collector. The specimen has been protected and left at the point of discovery. A reasonable person would understand from reading the proposed regulations that the specimen can only be collected with a permit and only a professional invertebrate paleontologist can obtain a permit to collect for research under these rules.

Even if BLM personnel can be authorized to collect the specimen, where will it be stored? I have seen BLM warehouses and storage facilities crammed to the rafters with innumerable boxes and virtually inaccessible boxes of paperwork. Land use plans, wilderness plans, EISs, EAs, categorical exclusions and more. The federal agencies are largely ill-prepared to store and curate more than a minor amount of paleontological specimens. Even an approved museum or repository has limited space for these resources. What happens to uncommon or rare specimens that cannot be placed in an approved facility?

So while the proposed regulations might appear comprehensive and reasonable, there are vast “holes” in the rules that were not considered. In other ways, the rules are questionable in their fairness and legality.

Discovery of the uncommon is perhaps the strong point of amateur and casual collectors of invertebrate fossils. We have far more free time than most professionals to direct into this hobby. This leads to far more exploration than academic professionals are capable of in the limited field time they are afforded by their institutions. Under the proposed regulations federal agencies will require professionals to have specific plans before permitting field collections, further curtailing their ability to explore and discover. Clearly these proposed regulations should be specific to only certain aspects of paleontology and not stand to inhibit genuine progress with respect to invertebrate paleontology.

I strongly protest the concept of various federal employees, most with limited understanding of invertebrate paleontology determining who might qualify as a knowledgeable collector, as in:

“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.”

and

“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.”

Here, the BLM is setting itself up for severe inconsistencies in application of the proposed regulations across resource areas, districts, states and nationally.

I like to think that I am knowledgeable, however, I have received no formal training. How is the federal government to determine that I am knowledgeable? Shall I be expected to be familiar with all trilobites, anomalocaridids, brachiopods, eocrinoids, graptolites, etc.? Since there is no discussion of qualifications for various categories of collectors, it is not clear how or even who will be responsible for making the determinations.

Several years ago, I found two odd specimens that had been excavated, but not collected by another. I took the piece home, but was unable to identify them. The specimen sat in my front yard in ignominy until I assisted a university-based researcher with field work several years later. The professional had recently published a paper describing a suite of three species which had been previously overlooked. I took my “yard” specimens to the professional later and they turned out to be the first complete specimens of one of the species his paper had described. I gave him the piece, as well as several specimens of common species which were better examples of their type than existed in his university’s collection. Under the proposed regulations and the USFS existing regulations, this cooperation in the interest of science would be illegal.

Not only that, but if I had been required to obtain a permit in that instance, how would the BLM archeologist make a reasonable determination of commonality since it had yet to be described? Was my “yard” specimen rare? Not if you know what level to excavate.

These proposed regulations fail on many levels regarding benefitting science. I can find no allowances for the disposal of amateur or hobby collections. Children or grandchildren often do not appreciate the same hobbies as their parents and grandparents. Since it is already illegal to “buy, sell, barter or trade” specimens collected from federal lands, and non-professional collectors would be barred by these proposed from donating collections to professional paleontologist or even approved repository, such collections could only be thrown in the trash, providing a benefit to no one. As such, how do these proposed regulations serve the best interest of the public and science as required in the PRPA? They clearly do not serve those purposes and must not be enacted in their current form.

Since the true scientific value of most collections are limited, the proposed regulations should allow for disposal of common invertebrate specimens to schools and school districts for appropriate distribution to science classes or even state and federal visitor centers where appropriate.

I oppose the proposed regulations new interpretation of surface disturbance. In order for the new rules to be consist with existing policies regarding “negligible disturbance” the area disturbed would have to be five acres, not the one cubic meter proposed. In fact, the proposed regulations have nothing to do with the long used BLM Visual Resource Management (VRM) Classes to determine landscape-level management of Bureau lands. The rules severely conflict with existing Bureau-wide management.

Proposed § 49.810(a)(3) would clarify 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. The reason for using the “1 square yard” maximum is that this would be similar to longstanding BLM practice, and such consistency is encouraged by PRPA.

The above rationalization for the proposed changes clearly directs that all BLM lands will now fall into VRM Class I relating to surface disturbance for fossil invertebrate collecting. The BLMM VRM standards clearly delineate:

  • Class I Objective: To preserve the existing character of the landscape. The level of change to the characteristic landscape should be very low and must not attract attention
  • Class II Objective: To retain the existing character of the landscape. The level of change to the characteristic landscape should be low
  • Class III Objective: To partially retain the existing character of the landscape. The level of change to the characteristic landscape should be moderate.
  • Class IV Objective: To provide for management activities which require major modification of the existing character of the landscape. The level of change to the characteristic landscape can be high.

What is most alarming, is that this Bureau-wide determination is not applied to any other non-consumptive or recreational pursuit on multiple use lands. VRM Class I is most often used by the BLM for wilderness, wilderness study areas and national recreation areas, certainly not random multiple use lands. Even the more appropriate VRM Class II, would not justify the excessive restrictions proposed for casual collectors on BLM lands. The federal agencies involved in analyzing the proposed regulations make no compelling argument for this glaring inconsistency.

Although I do not completely disagree with limiting disclosure of some paleontological resource discoveries by professionals, I protest the blanket coverage of all of these resources. Some scientific journals and public grants require this information to be published. Also, at a time when significant science is doubted by a large portion of the general population, this is no time to become openly and brazenly secretive about any subjects of public interest. The need for secrecy of any locality should be a rare collaborative decision of the appropriate professional or undergraduate paleontologist and representatives of the federal land management agency.

Not only is it unclear the effects of the proposed regulations will have on undergraduates involved in pursuit of a thesis, it is clear that the freedom of scientists and potential scientists is imperiled by these rules.

From my limited understanding of museums and universities, I do not see how a reasonable person could expect ALL paleontological resources collected from federal lands by professional invertebrate paleontologists to be deposited in repositories approved by the federal government. It is clear that regulation proponents do not understand the extent of the scientific material collected to support discoveries or the advancement of knowledge, nor do they comprehend how much of that material will be useful in an open scientific investigation. My observations have been that research is often similar to searching for a needle in a haystack. Under the proposed regulations, not only would invertebrate fossil researchers have to report the “needle,” but would also be responsible for reporting and finding space for common paleontological material, or in this case, the “haystack.”

Perhaps the worst determination for amateur or casual collectors in these proposed regulations is “reasonable amount” as stated in the federal analysis below:

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.

I feel obligated to point out that the wording here mirrors the USFS regulatory wording which was not developed with any mention of experience with or understanding of petrified wood collecting. As such, the BLM is falsifying its justification for proposing these limitations.

The explanation of the proposed regulation is also inaccurate. While referencing 25 pounds in defining a daily limit, the BLM ignore the existing fact that it allows collection of one additional piece of petrified wood. The yearly limit of petrified wood is also 250 pounds, not 100 pounds, as proposed for common invertebrate fossils. Additionally, petrified wood pieces are the “fossil” in their entirety. Fossil invertebrates are usually only a small part of the weight of the shale or rock on which or within which they are found. Therefore, invertebrate fossils and petrified wood are not comparable. The daily limit should be no less than 100 pounds and an annual limit of 1,000 pounds would be more realistic.

The PRPA limits casual collecting to non-motorized hand tools. I concur, as this has long been prohibited.   However, perhaps the most ridiculous part of the USFS regulations and the proposed BLM regulations is further restricting the use of tools by stating “These tools must be small, such as a geologic hammer, trowel, or sieve;”. It is clear from this restriction that not only have the proponents not been involved in casual collecting, but that their goal is to make it so difficult that it is no longer practical. If the proposed regulations are implemented it will be illegal to use a hand shovel or a pick, commonly used tools at the present. This is an example of gross regulatory over-reach.

All research work done on fossils on public lands now requires a permit. This includes research that does not involve the physical collection of fossils.

The proposed permitting requirements are clearly similar to those written for large scale vertebrate paleontological research projects, as are entirely inappropriate for the type of small scale research projects typically associated with invertebrate paleontology. The restrictions and bureaucratic paperwork will make such research unnecessarily difficult and in some cases, Impractical. Surely this is not the intent of the PRPA.

I feel obligated to point out that at current staffing levels, it is unlikely that either the BLM or USFS personnel have the time and have a properly developed system to manage paleontology on their lands as appears to be mandated in the proposed regulations. Despite the lofty preservation goals of these proposed regulations, I am not aware of any federal land managers with sufficient “spare time” to deal with the proposed burdensome regulations, including law enforcement personnel who would be expected to enforce the regulations across the vast landscapes of our public lands.

In conclusion, the proposed regulations will virtually end casual collecting. The restrictions will also have a severe negative effect on scientific research regarding fossil invertebrates on federal lands. I cannot believe that this was the intent of Congress, much less the desire of serious professionals.

I encourage the Department of the Interior to delay the implementation of these proposed regulations and to work with the Department of Agriculture to rework its regulations regarding paleontology with emphasis on fossil invertebrates. There needs to be a less insular vetting and more working with the affected scientists and affected public. These regulations must be changed to become more in the interest of science and recreation on the multiple use lands that all Americans have a right to enjoy and use in a reasonable manner.

Respectfully,

Craig Stevenson

 

Cc:

Office of the Secretary of the Interior

Office of the Secretary of Agriculture

Senator Dean Heller

Senator Catherine Cortez Masto

Representative Reuben Kihuen


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