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Analysis Of Reasonable Amount Definition

Analysis Of Reasonable Amount Definition

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

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

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

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

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

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

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

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

Furthermore 49.810(b) states:

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

C​ONCERNS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

R​ECOMMENDED​ R​ULE​ LANGUAGE

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

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

In addition, 49.810(b) should say:

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

C​ONCLUSION

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

Analysis Of Negligible Disturbance Definition

Analysis Of Negligible Disturbance Definition

The law says casual collecting results “in only negligible disturbance to the Earth’s surface and other resources” and the term negligible disturbance “shall be determined by the Secretary.” The proposed rule imposes a one yard square limitation on ground disturbance citing a long standing practice of BLM which is arbitrary and has no foundation in regulation and is in fact contrary to existing regulations nor is it practical in the field where rocks don’t always come in one yard square blocks.

Language regarding “negligible disturbance” is found in Supplementary Information and in the proposed rule.

The pertinent portions of the Supplementary Information section state:

(page 88183 left column 2nd paragraph)

“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. In the context of compliance with the National Environmental Policy Act (NEPA) in the issuance of research permits for BLM, for instance, a proposal to engage in surface disturbance of anything larger than 1 square meter is not usually subject to categorical exclusion but is subject to further analysis under NEPA. The fossil-collecting community should, therefore, already be familiar with this type of threshold. For purposes of managing ‘‘negligible disturbance,’’ 1 square yard is considered to be approximately equal to 1 square meter.

The proposed definition would also specify that collecting areas need to be separated by at least 10 feet where there is surface disturbance. The separation would reduce cumulative effects to other resources. Where there is no surface disturbance, there is no need to separate collecting areas.”

The proposed rule 49.810(a) states:

(page 88195 right column last paragraph)

“(a) What is casual collecting? (a) 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.”

The proposed rule 49.810(a)(3) states:

(page 881956 left column starting with third paragraph)

“(3) Negligible disturbance means little or no change to the surface of the land and minimal or no effect to natural and cultural resources, specifically: (i) In no circumstance may the surface disturbance exceed 1 square yard (3 feet × 3 feet) per individual collector; (ii) For multiple collectors, each square yard of surface disturbance must be separated by at least 10 feet; (iii) All areas of surface disturbance must be backfilled with the material that was removed so as to render the disturbance substantially unnoticeable to the casual observer.”

The proposed rule 49.810(b) states:

(page 881956 left column last paragraph)

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

C​ONCERNS

1. Use of the word “Negligible”. ​In the proposed rule, part of the negligible definition says that it “means little or no change to the surface of the land, and minimal or no effect to natural ​ and cultural resources” [emphasis added]. Saying that negligible means no change or ​ no effect is categorically wrong. By definition negligible means there is change or impact. PRPA says casual collecting is allowed with the caveat there is negligible disturbance, meaning the law anticipates some disturbance as a result of casual collecting. Therefore the use of the word “no” is not in accordance with the law and is incorrect when defining the word negligible.

2. The use of non-powered hand tools by definition limits disturbances to “negligible”. ​PRPA says “The term `casual collecting’ means the collecting of a reasonable amount of common invertebrate and 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 and other resources. As used in this paragraph, the terms `reasonable amount’, `common invertebrate and plant paleontological resources’ and `negligible disturbance’ shall be determined by the Secretary.” [emphasis added].

The law states that using “non-powered hand tools” is specifically allowed resulting in only “negligible disturbance”. Therefore, it should be acknowledged in the proposed rule that the law relates the use of “non-powered hand tools” with “negligible disturbance”. Because of the relationship between “non-powered hand tools” and “negligible disturbance” as stated in the law, it is understood that by using “non-powered hand tools” the result will be “negligible disturbance”. The use of “non-powered hand tools” while casually collecting paleontological resources naturally limits the disturbed area (size and depth) of individual collecting events and the total cumulative effect over time. Field experience shows backfilling naturally occurs over time without the need to immediately fill an excavation. Immediate backfilling impedes the ability of the casual collector to engage in normal collecting activities which are allowed by law. As a result, further defining “negligible disturbance” to include size of disturbance, distance between disturbances and requirements to backfill the disturbed areas are not necessary. The resulting regulation will be more simple and easier to understand than the proposed regulation for the public and law enforcement, complying with EO12866(12) “Each agency shall draft its regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty.

Furthermore this reduces the burden on individuals and law enforcement to carefully measure distances between disturbances, monitor disturbance size, backfilling a collecting site (for enforcement determining intent to backfill) such that it is substantially unnoticeable to a casual observer. In accordance with EO 12866 (11) “Each agency shall tailor its regulations to impose the least burden on society, including individuals, … consistent with obtaining the regulatory objectives…

3. The rule states that “​in no circumstance may the surface disturbance exceed 1 square yard

​ (3 feet by 3 feet) per individual collector”. According to the supplementary information “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. In the context of compliance with the National Environmental Policy Act (NEPA) in the issuance of research permits for BLM, for instance, a proposal to engage in surface disturbance of anything larger than 1 square meter is not usually subject to categorical exclusion but is subject to further analysis under NEPA. The fossil-collecting community should, therefore, already be familiar with this type of threshold. For purposes of managing ‘‘negligible disturbance,’’ 1 square yard is considered to be approximately equal to 1 square meter.” The use of one square yard may be relevant to archaeological excavations (where a person might be working in unconsolidated soils or other materials), areas where fossils have weathered out of rock, or remain in an unconsolidated host material due to lack of natural processes that would otherwise turn sediments into consolidated rocks.

However, the restriction of one square yard is not a practical or reasonable way to manage disturbances caused by casual collection of fossil bearing rocks on Federal lands. A major issue is that consolidated rocks, such as fossil-bearing shales and bedded limestones, where invertebrate and plant fossils are commonly found, do not occur naturally jointed in square yards.

As a specific example, the vast majority of fossil trilobites and associated faunas that are collected from the Cambrian exposures of the House Range in western Utah on BLM managed lands are collected by splitting rocks that are naturally jointed into blocks of various shapes and sizes most of which are larger than one square yard. The size of these blocks of rock is determined by the material composition of the rock, tectonic processes creating the Basin and Range and weathering process as they are exposed near the surface of the earth. These factors began over 500 million years ago. The bureau, by regulating the size of disturbance to one square yard, ignores the fact neither the bureau or the casual collector has control over the natural processes that dictate the size and shape of fossil bearing rocks. Therefore, by using one square yard to define and regulate what is “negligible disturbance” the bureaus may restrict the collecting of fossils occurring in rocks that do not meet this restrictive standard.

According to EO12866 Section 1(b)(7) “Each agency shall base its decisions on the best reasonably obtainable scientific, technical, economic and other information concerning the need for, and consequences of, the intended regulation or guidance document.” It does not appear that the bureau took into consideration the “reasonably obtainable scientific” or “technical” information of well understood principles of fossil occurrence, rock formation, tectonic movements and weathering when developing this regulation. By failing to understand the practical consequences of the one-square-yard limit in the proposed regulation the bureaus inadvertently violated the mandate in PRPA that “the Secretary shall allow casual collecting.

The bureau, in justifying the restriction of disturbances to one square yard, statesthat the proposed regulation should “be similar to longstanding BLM practice” of limiting disturbance to one square yard and that casual collectors should be “familiar with this type of threshold”. This example used by the bureau is based on the issuance of research permits. Vertebrate paleontologists who have obtained BLM survey permits may be familiar with this restriction of one square meter. Invertebrate paleontologists and paleobotanists have not been required to have a permit until PRPA and thus are far less likely to be familiar with this practice. The casual collector would in fact not be familiar with this type of regulation or requirement since it has only been a BLM practice used for permits issued to academic vertebrate paleontologists since the early 1990s. Nor is there evidence this limitation based on scientific or technical information as required by EO12866.

In development of the draft Environmental Assessment (EA) to address the terms “negligible disturbance” and “reasonable amount” the bureaus acknowledged that under existing mining regulations that disturbances of up to 5 acres only require the BLM to be notified of the operation, no approval is necessary. The EA says “Because PRPA requires the bureaus to allow casual collection and to define negligible disturbance, BLM inferred that the area must be greater than zero. Conversely, 5 acres is the area of public lands managed by BLM that may be disturbed by exploration conducted in the context of mining operations, for which only Notice to the BLM is required, but not approval of a mining Plan of Operations, under BLM’s surface management regulations at 43 CFR Part 3809. See 43 CFR 3809.21. Casual collecting of paleontological resources by the public requires neither a permit, nor notice to the BLM; therefore, in order the disturbance associated with casual collecting to be considered “negligible,” the BLM determined that the area must be less than 5 acres.” Based on the bureaus’ own determination disturbances up to 5 acres do not require a permit and as such are considered “negligible”. Furthermore, the bureaus’ claim that “a proposal to engage in surface disturbance of anything larger than 1 square meter is not usually subject to categorical exclusion but is subject to further analysis under NEPA” is not based in law or regulation. In fact, there are categorical exclusions (CX) that allow surface disturbances of up to 5 acres without further analysis under NEPA (see BLM NEPA Handbook H-1790-1 and 516 DM 11). For solid minerals the CX says “Disposal of mineral materials, such as sand, stone, gravel, pumice, pumicite, cinders, and clay, in amounts not exceeding 50,000 cubic yards or disturbing more than 5 acres, except in riparian areas.” as well as multiple references relating to the harvesting of trees where up to “0.5 mile of temporary road construction” is allowed without a NEPA analysis. EO12866 Section 1(b)(10) says “Each agency shall avoid regulations that are inconsistent, incompatible, or duplicative with its other regulations or those of other Federal agencies.”  It would be appropriate for the bureaus, instead of restricting “casual collecting” to one square yard, to be consistent with existing policies that allow for disturbed areas up to 5 acres. There are 24,200 square yards in 5 acres. To restrict disturbance to 0.0002 acres is so overly restrictive that it is neither reasonable nor rational.

In the draft EA the bureaus further justified the one square yard limit by stating that they are “concerned that the cumulative effects to the environment and to the resource may be too large… The cumulative effects are especially large when a group of people collect in a similar area, or return to an area over several years.” In order to assess the validity of this concern, an analysis of BLM managed Federal lands in Millard County UT was performed. Millard county is the home of one of the most popular areas for casual collection of fossils on BLM managed Federal lands (see https://nature.nps.gov/geology/nationalfossilday/paleozoic_utah.cfm).

Approximately 66% of all of the lands in Millard county are managed by the BLM. This represents approximately 2.9 million acres of land. To limit this area further, the known concentration of fossil collecting areas is restricted to approximately 500,000 acres in the vicinity of the House Range, Drum Mountains and Confusion Range. In order to determine the total disturbance in this area an assessment of specific sites that are utilized for the collection of trilobite and other fossils was completed. This evaluation of data showed that the cumulative disturbance from dozens of individual fossil collecting sites is approximately 5 acres, the largest single disturbance being 0.64 acres. To put this in perspective, the total disturbed area represents 0.0002% of all of the BLM managed lands in Millard County, and only 0.001% of the lands in the fossil bearing areas identified above.

In the context of the precedence under existing BLM regulations that “negligible disturbance” can be a single disturbance up to 5 acres, it is clear that even in this area of high use for the collection of fossils the total disturbance is negligible. Specific to the bureau concerns about cumulative effect of collecting over time. It is important to note that according to the American Museum of Natural History that fossil collecting by amateurs and hobby collectors goes back to the 1930’s or over 80 years. (see

http://www.amnh.org/our-research/paleontology/paleontology-faq/trilobite-website/trilobite-localities/utah-trilobites-america-s-paleozoic-palace/)

There is documented evidence that Lloyd Gunther, a famed amateur fossil collector, referenced in both of the web links above, started collecting in this area as early as 1931. In this case it is clear that the bureaus do not understand, or made no effort to quantify, the truly negligible disturbance that has accumulated over this time and their concerns about cumulative effect of casual fossil collecting which has gone on for more than 80 years is unfounded.

Collecting fossils in situ with hand tools is primarily done for trilobites, leaves and insects. This is due to the trilobite’s thin exoskeleton which does not remain intact when weathering to the surface. The rare exception is trilobite exoskeletons, most notably Elrathia kingi, which are thickened with cone-in-cone calcite and thus are durable and survive weathering to the surface. Plants and insects are most commonly preserved as carbon films and thus do not survive weathering to the surface.

Rock exposures on BLM lands with these kinds of fossils are a small fraction of fossil-bearing rocks, let alone the overall acreage of non-fossil bearing sedimentary, igneous, and metamorphic rocks further limited by blankets of topsoil and alluvium which cover all types of rock. Therefore the cumulative effect of disturbance is restricted to localized areas thus making relatively easy for bureau staff to monitor the areas of disturbance for those reaching the allowed 5 acre limit.

It should also be acknowledged that in this same area of the House Range the BLM has permitted the use of these same Class 5 fossil bearing rocks for a variety of salable mineral resources, including flagstone and crushed decorative rock. These permitted leases total approximately 23 acres. This shows that the bureau has little concern for the supposed scarcity of paleontological resources. One of these is a rock crushing operation that has recently operated in a popular fossil collecting site that many call “Red Wash”. The primary fossil bearing layers have been removed by heavy equipment and crushed into decorative ground covering. Based on experience collecting at this site and the amount of rock removed by this operation, it would be reasonable to assume that hundreds of thousands of trilobites and other arthropods have been destroyed.

4. The rule requires a ten foot separation between disturbances. T​he Supplemental Information and proposed rule say ​“For multiple collectors, each square yard​ of surface disturbance must be separated by at least 10 feet”. There is no basis explained in the supplemental information nor is there a precedent for this requirement in other rules regarding ground disturbance.

This requirement is not listed in the draft EA for PRPA. The proposed rule does not explain the scientific or technical basis for this separation as required by EO12866 (7). Furthermore it is not consistent with other bureau rules that address land disturbance limitations EO12866(10) requiring consistency between regulations. In 43 CFR 3809.21, exploration mining activities can disturb up to 5 acres using heavy equipment with only prior notice to the BLM.

Since disturbances up to 5 acres are allowed by other regulations, the proposed rule should not be concerned about the proximity of small adjacent disturbances unless a contiguous disturbance exceeds the 5 acre limit. Since the total of all combined areas of disturbance made by casual collectors in the House Range, Utah, among the most heavily collected fossil areas on BLM managed lands, has not exceeded 5 acres over the past 80 years, it seems there is no cause for such restrictive regulations on the casual collector who is already limited to the use of non-powered hand tools. Where disturbances are juxtaposed they lend themselves to the natural process of back filling as adjacent areas are collected, reclaiming the disturbance over time. The Supplemental information also says “The separation would reduce cumulative effects to other resources.” This is an unsubstantiated statement. In fact, if the ten foot separation rule goes into effect it will likely cause more widespread surface disturbance than would have occurred if adjacent collecting is allowed. Most casual collectors see a disturbance and collect adjacent to it, backfilling the original disturbance. With a ten-foot separation rule, casual collectors will be forced to move laterally ten feet creating a new disturbance, the next person another ten feet etc.

Disturbance will spread laterally over a much greater area, causing more disturbance than what would have occurred otherwise thus increasing, rather than reducing, the potential to affect other resources. The requirement to separate disturbances by 10 feet should be removed from the proposed regulation.

5. Casual collectors must backfill all disturbed areas. ​The proposed rule says “All areas of surface disturbance must be backfilled with the material that was removed so as to render the disturbance substantially unnoticeable to the casual observer.” The requirement to backfill shows a lack of understanding regarding the collection of many fossils that are found in situ.

Using the previously mentioned fossil bearing areas in the vicinity of the House Range in Utah, it is critical to note that the vast majority of the fossil bearing layers are found on mountain or hillsides. In these cases it is virtually impossible with the use of “non-powered hand tools” to backfill collecting areas with the materials that are previously removed. Neither the rule nor the supplemental Information explains the basis for the requirement or a satisfactory procedure on how to properly backfill materials in this situation.

Additionally, in almost all cases backfilling will disturb more than an additional one square yard of area. It is not practical to expect that a person will be able to adequately return disturbed materials back into the original area without causing additional disturbance. Rocks that have been removed and subsequently split will not fit back into the disturbance due to the inability to reconstitute rocks into the same form. It is also unclear what the view of a casual observer would be. Who is this “casual observer”? A bureau employee would not qualify in this role. Instead this person would be someone without knowledge of common practices used the collection of fossils and as such would not be familiar with disturbed areas. The bureaus use an arbitrary and unmeasurable way to regulate and enforce this requirement.

Each of these examples shows that the proposed rule fails to comply with EO12866 (7)(11)(12). In review of other law and bureau regulations, there are no requirements requiring backfilling disturbances caused by casual use. It is important to recognize that by definition “negligible disturbance” is insignificant and therefore does not require mitigation. The requirement for backfilling should be removed from the proposed rule.

6. Why is casual collecting limited to 1 square meter of surface disturbance?​ In the Supplemental Information of the proposed rule it says ”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. There is no evidence that this practice of using a 1-square-yard maximum is based in scientific or technical information for paleontological investigations as required by EO12866 (7). There has not been a long standing practice of limiting casual collecting to 1 square yard, because until PRPA and this new rule there were no law requiring regulation. A one square meter limitation on paleontology research survey permits has been used for many years however the restriction on research permits is not commonly known by casual collectors nor applied to their activities. The bureaus need to provide evidence how the one square meter of disturbance for survey research permits was determined and what science and technical information was used at the time it was established.

The proposed rule says ”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” [emphasis added]. This statement is false. PRPA says “…where such collection is consistent with the laws governing the management of those Federal land and this subtitle” [emphasis added]. PRPA clearly​ ​ states that consistency with existing laws must be followed, NOT practices as used in the justification for implementing such limitations as described in the Supplemental Information.

7. The draft Environmental Assessment (EA) under the National Environmental Policy Act (NEPA) for PRPA regulations addresses casual collecting. ​It says “Casual collecting activities are not anticipated to cause adverse impact to paleontological or other natural or cultural resources. However, if the BLM is aware that a paleontological resource may be depleted, the bureau may take action to prevent further depletion of the resource, either by closing the area to casual collection, or by limiting or restricting the definition of reasonable amount or negligible disturbance for that area.“  NEPA is used to evaluate impacts to the human environment.

NEPA is not used to evaluate whether there is enough oil, gas, gold, silver, fossils, gravel, or other resources remaining in the ground, but rather to evaluate how the actions of getting those resources affects the environment. The EA is not out for public comment and should never be finalized since casual collecting is within the the bounds of a categorical exclusion. If the bureaus choose to pursue an EA, they need to be certain the EA focuses on the how extracting a resource impacts to the environment, not on the the resource itself. The draft EA is found at <https://www.blm.gov/sites/blm.gov/files/programs_paleontology_quick%20links_BLM%20draft%20EA%20for%20casual%20collection.pdf>.

R​ECOMMENDED​ R​ULE​ LA​ NGUAGE

Supplementary Information section should read:

“Proposed § 49.810(a)(3) would clarify that ‘‘negligible disturbance’’ for casual collecting means little change to the surface of the land, and minimal effect to natural and cultural resources. Recognizing the relationship as stated in the law between “non-powered hand tools” and negligible disturbance” is understood that by using non-powered hand tools the result will be negligible disturbance. Cumulative effect must also be considered. To ensure consistency between laws and regulations, this proposed definition would specify cumulative negligible disturbance as no single contiguous site shall exceed 5 acres of disturbance. The bureau considered limiting disturbance to one square yard for consistency with vertebrate paleontology permitting practice. Upon further investigation the bureau found the one-square-yard limit is not required by law or regulation and is far more limiting than ground disturbance allowed under categorical exclusions of the National Environmental Policy Act (NEPA) (refer to BLM NEPA Handbook H-1790-1 and 516 DM 11) currently in use by the bureaus, thus the one-square-yard limit was abandoned. After investigating areas known to be casual collected, it was found there are a limited number of sites repeatedly visited by casual collectors. In those areas the bureau found no single site disturbed in excess of one acre after more than 80 years of repeated casual collecting. The bureaus further found that the disturbed areas heal themselves as continued collecting backfills previously disturbed areas and naturally revegetate. The bureaus attributed the slow growth and low level of disturbance to the requirement for casual collectors to use only non-powered hand tools, thus the bureaus feel this natural limitation is an adequate control on disturbance without further regulatory oversight. Since heavily collected areas are limited in number and the disturbance expands very slowly, it will not be a burden on bureau staff to monitor the size of disturbed sites. If, in the future, a disturbed site approaches 5 acres the bureau will evaluate potential impacts in context of compliancewith NEPA.

Suggested wording of proposed rule 49.810(a)(3):

“Negligible disturbance means surface collecting or using non-powered hand tools which naturally results in only negligible disturbance ensuring little change to the surface of the land and minimal effect to natural and cultural resources. Cumulative disturbance shall not exceed 5 contiguous acres without further analysis under NEPA. ”

C​ONCLUSION

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

Analysis Of Common Invertebrate & Plant Fossil Definition

Analysis Of Common Invertebrate & Plant Fossil Definition

​Things to consider when commenting on the rule

The law uses the word “common” when it references what invertebrate and plant fossils can be casually collected. Common is a vague word and an unfortunate choice in light of the requirement (Executive Order (EO) 12866) for agencies to use scientific and technical information when writing regulations. Wording the regulation is further complicated by the requirement (EO12866) to write it in a simple and easy to understand manner. In the talking points below you will find the results of our effort to assist the bureaus in defining common in scientific and technical terms which are simple and easy to understand for everyone.

Language regarding “common invertebrate and plant paleontological resource” is found in Supplementary Information and in the proposed rule. The pertinent portions of the Supplementary Information section state:

page 88175 right column 2nd paragraph

“When paleontological resources on certain BLM- and Reclamation-managed lands are common plant or invertebrate fossils, they may be casually collected in compliance with subpart I of the proposed rule. They are still paleontological resources (meaning that they have paleontological interest and provide information about the history of life on earth), but PRPA authorizes the limited collection of these resources on lands administered by BLM and Reclamation where such collection is consistent with the laws governing the management of those lands, PRPA, and subpart I of the proposed rule. ”

page 88182

“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. “

The proposed rule 49.810(a)(1) states:

“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.”

C​ONCERNS

1. The proposed rule says there are fossils established as being common, but the list of fossils, and how it was created and procedures for maintaining it, are not provided for comment. ​ The proposed rule states “… fossils that have been established by the bureaus, based on available scientific information and current professional standards, as having ordinary occurrence and widespread distribution.” To ensure the regulation is simple and easy to understand and that scientific principles are applied, the bureaus need to provide this list with this regulation for public comment. The list should include text describing how it was developed (scientific process), the proposed procedures to maintain the list, and how much money the development and maintenance of the list will cost the government.

Simply stating in the Supplemental Information that the list has been made “…based on available scientific information and current professional standards…” is not enough to satisfy the requirement in EO12866 to use the “best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended regulation.

Bureau response to public comments made on the USFS PRPA rules in 2013 summarily dismissed comments that were not supported with data. Therefore it is understood that public comments on these rules must include data supporting proposed changes to the rule or they will not be considered and the rule will not change. Why can the bureaus make statements in the regulation that are not supported by data or science? Where is the list of references the bureaus used to develop this common fossil list? It seems there is a double standard, the government can make unsupported claims, but the public has to support their comments with data and scientific papers. Bureaus had 8 years to develop this list of common fossils and explain how the list will be maintained and updated in a timely and fiscally responsible manner. Since the list wasn’t provided with the regulations the public can only assume it doesn’t exist, suggesting that if it can’t be developed in 8 years how can the public expect it to be promptly developed upon approval of these rules and then updated in a timely fashion in perpetuity. The list and procedures for updating it should be part of these regulations available for public comment since without it the bureaus fail to make “…regulations to be simple and easy to understand…” (EO12866(1)(b)(12)) using the “…best reasonably obtainable scientific, technical…” information EO 12866 Section 1(b)(7).

Where is the “professional standard” for “ordinary occurrence and wide-spread distribution”? Standard means that something is established, supported by rigorous testing and is readily available so everyone knows what is expected. No such standard of ordinary occurrence and widespread distribution exists. If this standard exists the onus is on the bureaus to cite the references where it is found in the literature.

The simplest approach is to abandon the impossible task of developing and maintaining a list of common fossils is to do one of two things: (1) base the definition of common on something easily measured and maintained such as hiring a bureau employee to data mine museum databases to determine if a minimum number of each species are in collections. The resulting report would be posted to the bureaus website annually (see more indepth explanation of this potential solution elsewhere herein); (2) Adopt the vernacular of common fossils already used for the public by state geological surveys and natural history museums (see Appendix A for examples). These references simply refer to the high level group names such as brachiopod, ammonite, plants, arthropod, etc. In essence they define common fossils as invertebrate and plant fossils. The law directs the secretary to define “common invertebrate and plant paleontological resources”. The law does not preclude the secretary from defining common as including all invertebrate and plant paleontological resources. For reasons of simplicity and fiscal responsibility, as explained elsewhere in these comments, it is clear this broad definition should be the one used in the proposed regulation.

2. “Common” is defined as “ordinary occurrence” and “widespread distribution” but none of these three terms have scientific definitions.  C​ommon has no scientific definition, it is not a scientific term. Common fossil is used in writings for the public (see Appendix A), not in peer-reviewed scientific papers or books intended for other scientists. By defining common as “ordinary” and “widespread” the bureaus defined one non-scientific word with two more non-scientific words, thus compounding the difficulty of proposing a scientific definition. The regulations do not propose recommended criteria for a fossil to be ordinary and widespread, thus the regulation is vague and makes it impossible for the public to comment on this important aspect. No description is provided regarding what level of classification (species, genus, order, class, etc) fossils are defined as common. This leaves the definition of common up for interpretation which will cause confusion. Attempts to define common at the species or genus level will create many problems since lower level taxonomic groups are frequently reclassified by scientists thus creating a monumental task keeping the common fossil list current. Using higher level taxonomic classification to determine common is completely useless since reproductive and preservational success are not the result of high level morphological characteristics.

 

3. And how does ordinary occurrence and widespread distribution work in conjunction in this definition?​ Index fossils are used in paleontology to correlate rock units separated by distances, sometimes globally. The definition of an index fossil varies from one text to another but is generally agreed that an index fossil species is morphologically distinct, widespread, abundant, and short lived (geologically restricted in age). It is rare for fossils to meet these criteria, thus there are not many index fossils defined. In the proposed rule common fossil is defined in terms “ordinary occurrence” and “wide-spread distribution”. It seems this is half the definition of an index fossil. Only rarely are plant fossils an index fossil, Glossopteris being a notable example known only from the southern hemisphere, thus if the proposed rule is instituted, fossil plants could be interpreted as off limits to casual collecting. If the concept of index fossils were applied to invertebrates the rule as written would essentially limit casual collecting to very few species of index fossils.

Endemism is the norm for most plants and animals, they live in a particular niche and do very well there. Organisms of the past were no different. Therefore a fossil may be common or even exceptionally abundant locally but not occur anywhere else worldwide, which by the proposed rule, would presumably mean it is not widespread and therefore cannot be casually collected. For example, the trilobite Elrathia kingi is commercially collected on Utah State land and has been for many decades, with literally millions sold worldwide. Elrathia kingii is only able to be collected from about 2 acres of known exposures on Federal land in the House Range in Utah. Is this widespread? It would seem by the proposed definition of common that Elrathia kingi cannot be casually collected on public lands managed by the bureaus. It is commonly understood that this is one of the most abundant trilobites in North America, yet this proposed rule would prevent the casual collector from looking for it because it is not “widespread.” This flies in the face of logic, the use of “widespread” in the definition of common is not appropriate.

4. The regulations create a self-perpetuating loop where fossils not on the commonlist will will remain so simply because collecting them is prohibited.  C​ommon vs uncommon is often a function of collecting bias than anything else. For example, in the House Range of Utah the shale-dominated central portion of the embayment during the Cambrian Period rarely produces Olenoides trilobites among the more common trilobites and other fossils. It wasn’t until casual collectors started looking in the bedded limestones deposited on the flanks of the embayment that Olenoides were found in abundance. If Olenoides were only known from the shales and these rules were in effect then we would likely never know that Olenoides is abundant in the nearby limestones.

Casual collectors find enjoyment in looking for and discovering fossils and they do it at their own expense. Academic paleontologists have to fund expensive field expeditions, thus their efforts are focused where results are most likely. Olenoides, already known from the shales, would not be the focus of academic research to see of it occurs in the nearby limestones, not to mention the extra cost created by the greater effort and time necessary to break limestone to find them.

5. Citizens are not treated equal under the proposed rule.​ The Supplemental Information of the proposed rule says “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.” How is training measured? America is a land of equality how can the law hold one person to a different standard than their neighbor? This creates a situation where the public is encouraged to not learn about fossils for fear of being arrested. PRPA requires bureaus to educate about paleontology therefore the bureaus should provide necessary training to bring all citizens to a minimum standard of knowledge of invertebrate and plant fossils along with the propermethods to collect and prepare them. By doing so the bureaus will fulfill the purpose stated in the law and underscored by the use of “Preservation” in the law’s title.

Executive Order 12866 Section 1 says “Federal agencies should promulgate only such regulations as are required by law” and are “necessary to interpret the law.” The law defines casual collecting and requires the secretary to define “reasonable amount”, “common invertebrate and plant paleontological resources” and “negligible disturbance.” Nowhere in PRPA does the law require the secretary to define casual collectors and separate them into groups that are treated differently. The reference to holding “trained amateur, avocational paleontologist, or professional to a higher standard” should be removed from the Supplemental Information.

6. Is leaving a fossil not on the common list in the field after discovering it the right thing to do in the interest of preserving fossils?​ A study of fossil bone at Badlands National Park showed that “In some instances, fossils were completely destroyed in a single season while others were exposed more as the slope eroded with minimal damage” (Stetler, 2014). This study looked at permineralized mammal bones which are much more durable than a thin carbon film of a plant fossil, graptolite or arthropod.

Destruction of fossils by the elements is so commonly known there are few publications that use their precious print space to tell collectors not to leave fossils outside once they are exposed. Here a few examples explaining what happens when fossils are left outside after they are exposed.

The Eocene Messel Pit in Germany preserves the oil shales of an ancient lake and the fossils they entombed. On the Seckenberg Museum website (http://www.senckenberg.de) it explains that “Since the water-containing oil-shale would fall apart if allowed to dry out in the air…” they must be covered with plastic in the field.

Another example is Clarkia fossil beds in northern Idaho that produces abundant fossil leaves, which if not properly cared for immediately begin to disintegrate. An article about Clarkia says “One of the keys to successful fossil digging is making sure that your freshly opened treasures are properly preserved. The carbon-rich materials are likely to dry out and blow away unless you handle them correctly” (http://newwest.net/main/article/digging_up_ancient_treasures_in_clarkia/).

Another example of a quickly degrading clay are the shales of Florissant Colorado which produces abundant insects and leaves. Regarding the paper shales of Florissant, Faulkner (2014) says “The paper shale itself is smectite clay weathered from volcanic ash and is interlayered with diatomite. Each layer is 0.05-2 mm in thickness and contains carbonized fossils of plants and insects, preserved with microscopic details, such as compound eyes, antennae, coloration and venation intact. These fragile fossils are susceptible to cracking and loss from even minor environmental changes, so stabilization is vital.” While many other shales do not react so rapidly to aerial exposure, they nonetheless dry out over time degrading into small fragments and destroying the fossils they contain.

Based on his research of shale Richardson (1985) says “Some shales may be reduced from a rock-like state to a soil—like material of silt or clay sized particles. The rate and magnitude of degradation varies among shale types.”

While different fossils in a variety of rocks will withstand exposure to the elements for differing lengths of time, they are all ultimately destroyed if not collects. Stephen J Gould (1993) said “Most fossil localities should not be regulated like unique archaeological sites. Fossils in the ground, wrapped in red tape, are worthless, and fossils exposed in outcrop will quickly be weathered and destroyed if not collected.” Enough said.

7. What happens to a fossil that is not on the common fossil list and therefore cannot be collected by a casual collector? The Supplementary Information of the proposed rule says “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.

There are two major issues with this sentence: it applies only to knowledgeable casual collectors (see discussion on unequal treatment of citizens) and if the fossil is left in the field natural processes will quickly destroy it. To prevent destruction of the fossil, casual collectors should notify the bureau ASAP, though this is not stated in the proposed rule, but if the casual collector is on a multiday trip in the back country this may not be possible. Once notified, if bureau officials do not collect the fossil immediately it will be destroyed, thus defeating the intent of PRPA to preserve fossils. Some rock, in particular shales, when exposed to air will dry out and disintegrate within 24 hours.

The apparent lack of understanding these natural processes is further evidence the bureaus did not use scientific information when drafting the proposed rule. Are the bureaus ready to drop what they are doing and respond to every report of a fossil not on the common list?

The rule does not say what to do when you collect an apparent common fossil covered with matrix, but after preparation at home the specimen is not on the list of common fossils. Will the fear of being charged with a crime make collectors more hesitant of sharing an important discovery?

8. What happens when you “…alert the bureau…” of the discovery of a fossil not on the common list.​ Does every field office have paleontologists capable of identifying every fossil in the field office boundary to the species level, thus enabling them to determine if a fossil is common? They do not. BLM has regional paleontologists who cover large areas, usually covering multiple states (See Appendix B). If common fossil is defined narrowly, thus generating a large number of calls alerting the bureau of fossils not on the common list these few BLM paleontologists will be overwhelmed.

The travel costs to assess each reported fossil will be high, which cost was not addressed in the economic analysis of this regulation. No single paleontologist can know every kind of echinoderm, brachiopod, mollusk, worm, sponge, cnidarian (coral), arthropod, graptolite and plant to the species or morphotype level. If common fossil is defined by species then the government will have to hire multiple paleontologists for each animal and plant group to ensure they are stationed in relative proximity to fossil resources. The financial impact of hiring government paleontologists is not addressed in the economic analysis of the regulation writing process.

This brings into question who in the bureau will visit respond to each reported discovery to identify, collect, and curate the fossils not on the common list. Historically the bureaus have frequently assigned paleontological duties to archeologists which are commonly stationed in field offices while paleontologists are in state offices. Sending the archaeologist to assess paleo resources is not appropriate since archeology and paleontology do not overlap in their expertise. Trained paleontologists must be sent by the bureau to investigate reported fossils to ensure proper identification and proper collecting procedures are used for in situ fossils. This is in accordance with definitions in PRPA defining who can receive a permit to collect fossils on bureau lands therefore if the bureau uses an unqualified employee to assess and collect a fossil the bureau itself is in violation of PRPA.

9. Can casual collectors obtain a permit to collect fossils?​ The Supplementary Information of the proposed rule states, “If the collector wishes to pursue collection, he or she must obtain a permit to collect the uncommon resource.” Casual collectors per definition in the proposed rule are not researchers therefore they cannot collect the fossil for research. Per the proposed rule a casual collector without a degree in paleontology will not qualify for a permit.

So what does “wishes to pursue collection” really mean? As mentioned elsewhere herein, fossils can be destroyed quickly if left in the weather, so taking the time to get a permit to collect the fossil will contribute to the fossil’s destruction. This also causes extra expense to the wouldbe collector who then has to return to the field to collect the fossil with permit in hand.

Under the definition of Collection it says “Because permits may be issued only to further paleontological knowledge, public education, or management of paleontological resources, any collections made under those permits should likewise further these goals. Such collections would be deposited in an approved ​ repository” [emphasis added]. It appears the only purpose for offering the ability for a casual collector to obtain a permit to collect a fossil is so the private citizen spends their personal time and money to collect the fossils and provide it to an institution where the fossil remains the property of the US government. This relieves the bureau of responsibility and cost under PRPA to collect the fossil using bureau staff.

10. The bureau claims not all invertebrate and plant fossil are common, how do they know? ​The Supplemental Information of the proposed rule says “Not all invertebrate or plant paleontological resources are common.” The bureaus do not provide data supporting this statement. The bureau has not adequately defined common, so making an unsubstantiated statement that not all fossils are common does nothing to clarify the issue and violates EO12866 requiring clear and simple language and the use of reasonably available scientific information. Without rigorous scientific support, this statement should be removed. There are many examples of fossils that when first found were not thought to be common, but were later found elsewhere to be common. For example, in one locality in the House Range of Utah, the trilobite Jenkensonia is found in association with the trilobite Brachiaspidion in a ratio of about 1 in 100. Many years later while looking lower in the section and offset laterally about 200 yards, Jenkensonia were found in equal numbers with Brachiaspidion.

Another example is the trilobite Olenoides. Once it was only found as a less common element among more common trilobite species in shales, but was later found to not only be common but also a dominant trilobite in nearby limestones.

11. “Uncommon” is used in the regulation but is not defined. T​he Supplementary Information of the proposed rule uses the word “uncommon” but does not define it. It says “If a knowledgeable collector makes an unanticipated discovery of an uncommon paleontological resource…” and “If the collector does collect the uncommon resource…” As described elsewhere common is not clearly defined in the proposed rule. The use of the term “uncommon” further confuses the matter. According to dictionary.com, the prefix un means not. By adding un to common it now means not common. Uncommon therefore refers to all fossils that are not common. Thus the rule could be construed to mean a casual collector cannot collect abundant fossils because they are not common. Without a good definition of common the proposed rule is unenforceable.

12. Can the public decide what is common? ​ Executive Order 12866 Section 1(b)(3) says “Each agency shall identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.” [emphasis added]

User fees and marketable permits are used in pollution management. In pollution control, user fees are a tax proportional to amount of pollution produced. Marketable permits are tradable, allowing companies to sell unused pollution amounts to others allowing them to pollute more than the law would allow. Neither of these appear appropriate for casual fossil collecting since casual collecting by definition within PRPA is not commercial.

The last statement “providing information upon which choices can be made by the public” is perfectly in line with PRPA which mandates the bureaus to educate the public about fossils. The proposed rule can define “common” broadly to include all invertebrate and plant fossils then use the required educational portion of the law to educate the public regarding the scientific significance of fossils. In this way the Bureaus can allow the public to decide what fossils are common and provide the rest to an approved repository of their choice.

13. How much will it cost the bureau to define common fossils? E​O Section 1 (b)(6) says “Each agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its cost.” Since there is no scientific definition of common the only science-based method to determine what fossils are common is a literature search of the fossil species occurring on bureau lands.

First the bureaus have to research what fossils are in their jurisdiction, obtain and read all articles describing each species to see if the article makes reference to how common the fossil species is. If no mention is made regarding its abundance, how then will its commonness be determined? The data must then be compiled into a publicly accessible database.

This will take many years (estimates place the number of fossil species in excess of 350,000, of which 10s of thousands will be on bureau land) and cost hundreds of thousands of dollars. Once complete the database will require continuous updating as new publications describe species and redescribe old ones. Creating and maintaining this database will be a very time-consuming task which translates into permanent effort that will ultimately cost the bureaus millions of dollars to attempt with little chance of success. This cost is not included in the cost analysis for the proposed rule. USE THE PALEOBIOLOGY DATABASE EFFORT AS EVIDENCE.

14. Is proposed definition of “common” simple and easy to understand?​ Executive Order 12866 Section 1(b)(12) says “Each agency shall draft its regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty.” The proposed definition of common is so vague and not based on scientific principles that the only way to clarify its meaning is to test it in a court of law. The bureaus are not doing their due diligence defining common but are leaving it to the courts to decide which violates EO12866.

The definition of a common fossils is so elusive there is only one way to define it in a “simple and easy” way: all invertebrate and plant fossils are common. If the public, educated through bureau efforts, finds something they think is unusual they are encouraged to take it to an approved institution for evaluation.

15. Does proposed rule define common in scientific or technical terms?​ EO 12866 Section 1(b)(7) says “Each agency shall base its decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended  regulation.” Admittedly this is difficult to do when defining an ambiguous word like “common” that legislators used in the law. There is no indication in the supplemental information or proposed rule that the bureaus made an effort to use scientific or technical information when defining common in the regulation. It appears the writers opened a thesaurus and found “ordinary” as a synonym of common.

Widespread is not found in the definition of common nor as a synonym, so it is unclear how widespread became part of the definition of common with regards to fossils. It is clear from how common was defined that those writing the regulation are not familiar with paleontology in the field where limited areas may not only produce common fossils but in many places they are abundant. Fossils need not be widespread to be common, see herein the example of Elrathia kingi.

16. Can definition of common be defined by how many specimens are in approved repositories? ​As described herein, trying to extract from published literature descriptions of what fossils are common will be difficult, if not impossible, to compile and maintain. On the other hand, fossil specimens in approved repositories are always entered into databases. It only takes minutes to query the database for all fossil invertebrate and plants. Combine data from all approved repositories and with the click of the mouse the data can be sorted by genus and species or morphotype number (if not yet formally described). Query the database further to calculate the total number of each species. Separate the list into fossils with more than 10 specimens and a list with 10 or fewer specimens and post the lists to a webpage available to the public. This exercise can be repeated annually to keep it reasonably current as more specimens are added to repositories. By posting both lists the casual collector will be encouraged to look for specimens not on the common list to ensure they become listed as common in the future. This approach will provide specimens and locality information for academic paleontologists to access and learn where they would like to complete their next project under permit, which will further increase the number of specimens in repositories well beyond 10 specimens.

Ten specimens is proposed for two reasons. (1) Fossil leaves are rarely formally described and given a genus and species name. Rather they are described as morphotypes. Paleobotanists at the Denver Museum of Nature and Science pioneered this morphotyping process in the 1990s. One fossil leaf is selected as the holomorphotype. Up to nine additional fossil leaves are selected to show the full range of morphological variation. The best Morphotype Quality Index score is obtained by having 10 well preserved leaves (all showing at least 5th order venation) (visit http://www.paleobotanyproject.org/morphotyping.aspx) (2) Invertebrate fossils are generally less morphologically variable than leaves. When formally described, a single specimen is designated as a holotype against which all other specimens are compared.

If a new fossil is found showing better or previously undescribed characteristics it may be designated a paratype but it doesn’t replace the holotype, no matter how poorly the morphological characters are preserved on the holotype. It is difficult to find what is considered a maximum number of syntypes though in Just Our Types: A Short Guide to Type Specimens by the American Museum of Natural History it says “Having too many syntypes around can be confusing…”., suggesting a low number is preferred.

R​ECOMMENDED​ R​ULE​ LA​NGUAGE

First preference in how Supplementary Information section should read:

Under proposed § 49.810(a)(1), only common invertebrate and common plant paleontological resources may be casually collected for personal use. The bureaus have determined that in order to minimize the potential for uncertainty arising from the great diversity of invertebrate and plant fossils, that all invertebrate and plant paleontological resources shall be considered common. Additionally due to this diversity of invertebrate and plant fossils, the cost to define common in any other way far exceeds the potential benefit. 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. Casual collectors are strongly encourage to collect using proper techniques and record associated data (such as: which side was up (if found in situ), date found, GPS coordinates, and its geologic formation). This ensures the continued scientific value of the fossil. The bureaus will create learning resources to educate casual collectors in proper collecting techniques and assist in the identification of common invertebrate and plant fossils thus furthering the educational provisions of PRPA.

Second preference in how Supplementary Information section should read:

Under proposed § 49.810(a)(1), only common invertebrate and common plant paleontological resources may be casually collected for personal use. Common invertebrate and common plant paleontological resources are invertebrate or plant fossils with 10 or more specimens in approved repositories. 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. Most invertebrate and plant paleontological resources are common. If the resources are not listed as common the casual collector should notify the bureau as soon as possible. The bureau will dispatch a paleontologist to assess the fossil discovery within 48 hours of receiving notification. 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 notify the bureau. If a casual collector keeps a fossil not listed as a common resource that collector may be subject to penalties. To reduce uncertainty and potential litigation regarding what is common, the bureaus shall establish a list of common fossils compiled from approved repository databases. The list will be updated annually using the most current data from all repositories. The bureaus will create learning resources to bring all casual collectors to the same minimum level of understanding about fossils and proper collecting techniques thus furthering the educational provisions of PRPA.

First preference for wording of proposed rule 49.810(a)(1):

Common invertebrate or plant paleontological resources means all invertebrate and plant fossils. This broad definition recognizes the great abundance and diversity of invertebrate and plant fossils on Federal lands.

Second preference for wording of proposed rule 49.810(a)(1):

Common invertebrate or plant paleontological resources are invertebrate or plant fossils with ten or more specimens housed in an approved repository. Most invertebrate or plant paleontological resources are common.

In addition, 49.810(c) is redundant with language and explanations elsewhere in the regulations and is unnecessary to repeat thus it should be deleted.

C​ONCLUSION

It is anticipated that the discussion above will stimulate other ideas related to the proposed rule on “common invertebrate or plant paleontological resources”. Please share your thoughts to encourage dialog.

Death of Discovery

Death of Discovery

Note: This article was written back in 2013 in response to the very similar Forest Service regulations.  It is being republished here because most of content is relevant to the newly proposed BLM regulations.  There are some minor differences in the text of the regulations.

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For many of us, our earliest childhood memories are related to the things that we loved to do the most. Whether that be a trip to Disneyland, playing baseball with our Dad, fishing, or a special trip with our families. Often, it is those same things that we love to do today. For our family that was collecting fossils. It was like a giant puzzle of the history of the earth. Constantly urging us to understand a little more.

Back in the mid 1960’s, our family moved to Brigham City UT. My Grandfather, Lloyd Gunther, sought out advice from a paleontologist, Dr. Stewart Williams, and was directed towards the mountains to the north of town. It had been studied by some of the greatest minds of early paleontological research in the western United States. My Grandfather was cautioned though, that it had been collected out, and that there is not much left to find. That did not discourage my Father and Grandfather from trying though, and we earnestly sought out fossil bearing rocks that they could see from the backyard of our home.

It wasn’t long before we discovered the fossil bearing rocks and learned that with a little, or a lot of work, we could collect the vast exposures and find fossils. Not being familiar with everything that we might find, in our wisdom, we contacted Dr. Richard Robison. As a result we began to learn more and more about what we were finding. Identifying the various fossils became an exciting adventure, even to the extent that we began to understand where different types of fossils came from in the formation.

With time, we found things that were not recognized by Dr. Robison. New species were found and the desire to search out these, and more, became an even greater attraction. Dr. Robison helped connect us with some of the foremost experts in the various fields of paleontology that would be able to further our understanding. Some might think that we would covet these new species and not want to give them away to be studied, however the opposite was true. There was never a thought of hoarding these for ourselves. Anything that might be of interest to science was freely given to those that were interested. Some of the finest specimens we had were happily given away.

By 1980, our family name was somewhat synonymous with fossil collecting in Utah. By that time we had done so much to advance the knowledge of paleontology in Utah that we were nominated and awarded the very first Strimple Award, given by the Paleontological Society to recognize outstanding achievement in paleontology by amateurs. There were few weekends when one of us wasn’t anxiously engaged in furthering the science of paleontology, whether digging along with a University project, or out exploring, trying to find new exposures and new fossils somewhere in the Western United States.

Between the years of about 1970 and 2015, this desire to collect and contribute permeated everything that our family did in relation to fossils. We continued to collect and donate specimens as readily as we could find them. Leading professional academic paleontologists from all over the world to some of our best collecting sites and sending them away with anything that they wanted and more. During that time, well over 10,000 specimens and dozens of scientific papers were written referencing contributions that were made. Two books were coauthored by the Gunthers, specifically about fossils from the middle Cambrian of Utah. Grandpa Lloyd passed away at the age of 95, largely because he could no longer get out in the field and collect. His desire to stay alive was directly related to his ability to get out and break rocks. When that became an impossibility, it wasn’t long before he was gone. It kept his body and mind young.

One might ask, while this is all nice and good, what does this have to do with anything that I should care about today… On March 30th of 2009, President Barak Obama signed the Ominbus Public Land Management Act. Buried within this new law was Subsection D, called the Paleontological Resource Preservation Act, or PRPA for future reference. This act was largely the objective of Federal land agencies and vertebrate paleontologists to ensure that the rules that they had been held to for years were also projected across the aisle to all ‘fossil resources’. It also strengthen laws regarding the selling of fossil resources to ensure that the criminal aspects of collecting and selling fossils are consistent across agencies.

If you have not already, I encourage each of you to look up this act and study it. Without an understanding of it you might find yourself at odds with an army of Federal agents one of these days. For thoroughness, I thought it wise, to include some of the details that are most pertinent to the avocational collector. For a researcher or professional academic paleontologist, I pity you if you ever touch a fossil without a permit on public lands.

Highlights of the law:

Definitions:

CASUAL COLLECTING- The term `casual collecting’ means the collecting of a reasonable amount of common invertebrate and 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 and other resources. As used in this paragraph, the terms `reasonable amount’, `common invertebrate and plant paleontological resources’ and `negligible disturbance’ shall be determined by the Secretary.

As indicated in the text above, it would seem that a ‘casual collector’ shouldn’t have much to worry about, as long as he or she was only collecting ‘common invertebrate and plant’ fossils. However, the next sentence is where things get complicated. By law, the secretary must determine what a reasonable amount, what is common, what is negligible. More on this later.

Management:

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 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.
Coordination- To the extent possible, the Secretary of the Interior and the Secretary of Agriculture shall coordinate in the implementation of this subtitle.

There are two points here worth considering. First the protection plan for fossil resources shall emphasize coordination amongst agencies, non-Federal partners, scientists and the general public. Second, to the extent possible the agencies that write the rules and enforce them shall coordinate.

Collection of Paleontological Resources:

Permit Requirement-
IN GENERAL- Except as provided in this subtitle, a paleontological resource may not be collected from Federal land without a permit issued under this subtitle by the Secretary.
CASUAL COLLECTING EXCEPTION- The Secretary shall allow casual collecting without a permit on Federal land controlled or administered by the Bureau of Land Management, the Bureau of Reclamation, and the Forest Service, where such collection is consistent with the laws governing the management of those Federal land and this subtitle.
If you want to collect any fossils on any Federal land, you must have a permit. That is unless you are a ‘casual collector’. Except, what is a casual collector?

Prohibited Acts; Criminal Penalties:

In General- A person may not–
(1) excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any paleontological resources located on Federal land unless such activity is conducted in accordance with this subtitle;
(2) exchange, transport, export, receive, or offer to exchange, transport, export, or receive any paleontological resource if the person knew or should have known such resource to have been excavated or removed from Federal land in violation of any provisions, rule, regulation, law, ordinance, or permit in effect under Federal law, including this subtitle…
(3) 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 Federal land.

If you are not a casual collector you can’t touch a fossil from Federal land in any way. If you are a ‘casual collector’, you can touch and exchange, but not sell, common invertebrate and plant fossils. But then again, what is a ‘casual collector’, and who decides what is common?

Rewards and Forfeiture:

Rewards- The Secretary may pay from penalties collected under section 6306 or 6307 or from appropriated funds–
(1) consistent with amounts established in regulations by the Secretary; or
(2) if no such regulation exists, an amount up to 1/2 of the penalties, to any person who furnishes information which leads to the finding of a civil violation, or the conviction of criminal violation, with respect to which the penalty was paid. If several persons provided the information, the amount shall be divided among the persons…

If a federal agent decides that you are not a ‘casual collector’, even if you think you are, or that you collected something this does not meet their description of ‘common’, you might get turned in for a reward. This is tough because a lot of us trade fossils with friends. It is how we learn about new specimens and localities. It is part of our culture as fossil collectors.

Confidentiality:

Information concerning the nature and specific location of a paleontological resource shall be exempt from disclosure under section 552 of title 5, United States Code, and any other law…

From now on, no fossils localities will be included in scientific publications, unless the agency wants to disclose the site. So much for including the public. This is worrisome as now science is required to hide from the public.

Savings Provisions:

Nothing in this subtitle shall be construed to–
(1) invalidate, modify, or impose any additional restrictions or permitting requirements on any activities permitted at any time under the general mining laws, the mineral or geothermal leasing laws, laws providing for minerals materials disposal, or laws providing for the management or regulation of the activities authorized by the aforementioned laws…
(2) invalidate, modify, or impose any additional restrictions or permitting requirements on any activities permitted at any time under existing laws and authorities relating to reclamation and multiple uses of Federal land;

Although it may be illegal to touch a fossil, except in rare cases it seems. It is perfectly acceptable to dig them up and turn them into crushed rock, or any other acceptable form of industrial use. It is also not acceptable to impose any restrictions, because of fossil resources, on any other permitted use of Federal lands. In other words, it is perfectly fine to destroy fossils, but you can’t collect them.

So what does all of this really mean? For the commercial fossil seller, this strengthens the laws against doing anything with fossils that are found on Federal lands, regardless of the type. Whether it be a dinosaur tooth, or the weathered shell of a common brachiopod. If there was any grey area before, there is none left now. If you have never collected a fossil in your life, you have little to be concerned about as long as you are not knowingly collecting vertebrate fossils. The biggest issue, and the one that I have highlighted already, concerns amateur paleontologists. I would have typically called these people ‘casual collectors’. It is not their job, it is just something that they love to once a month or on weekends. The agencies were charged with the determination of reasonable amount, common invertebrate and plant fossils and negligible disturbance. When this law came out those were the three things that kept me up at night. What I didn’t expect was for an agency to go beyond the requirements of the law and define ‘casual collecting’.

Fast forward to 2013. The Forest Service was the first agency to write their rules to implement the PRPA. In late May of 2013, the Forest Service issued their draft rules for comment. The comment period lasted for 60 days. I won’t go into the details of this draft, but suffice it to say that they were so restrictive that no amateur collector could ever ‘practically’ collect fossils again on Forest Service land. Although not covered in this discussion, the academic community that at one time had free reign to explore public lands now would have no such freedom again. A permit would now be required for them to be able to do anything. In addition, they would be unable to rely on the so called amateur or ‘casual collectors’ that had done so much to support their efforts. At the end of the 60 day comment period only 177 persons had responded to their draft rules.

On April 17th, 2015 the Forest Service published their final rule in the Federal register. https://www.federalregister.gov/articles/2015/04/17/2015-08483/paleontological-resources-preservation Most particularly, as it relates to the casual or amateur collector, they were required by the law (PRPA) to define each of the things outlined previously; reasonable amount, common invertebrate and plant fossils and negligible disturbance.

Reasonable amount means a maximum per calendar year of one-hundred pounds by weight, not to exceed twenty-five pounds per day.
Common invertebrate and plant paleontological resources are invertebrate or plant fossils that are of ordinary occurrence and wide-spread distribution. Not all invertebrate and plant paleontological resources are common.
Negligible disturbance means little or no change to the surface of the land and causing minimal or no effect on other resources. The Authorized Officer has discretion to determine what constitutes negligible disturbance.

Although I disagree with their definitions, and in particular the amounts and ambiguity of them, this was required. What concerns me the most, is what was done beyond that required by the law. They also decided to define additional pieces of the law that turned their rule into a death sentence for the casual and amateur collectors.

Non-powered hand tools mean small tools that do not use or are not operated by a motor, engine, or other power source. These tools are limited to small tools that can be easily carried by hand such as geologic hammers, trowels, or sieves, but not large tools such as full-sized shovels or pick axes.

As far as the Forest Service is concerned a hand tool is a tool that can only be used with one hand apparently. Do not get caught with a shovel, pick or bar in your hand if you are on Forest Service lands. This, in conjunction with the limit of 25 lbs. a day and 100 lbs. a year, means that as a casual or amateur collector, you are now limited to being able to collect a few days a year, with a generally inadequate set of tools. I would ask any of you that are amateur collectors, do you think that this is a reasonable set of constraints?

To make matters even worse, the Forest Service went even farther and took upon themselves the prerogative to define the meaning of the word casual in the section by section explanation of the rule.

The term casual collecting… The Department considers that in establishing the term “casual collection” rather than “amateur collection” or “hobby collection” or “recreational collection”, the Act intended that casual collection reflect the commonplace meaning of “casual”. The commonplace definition of casual includes the elements “happening by chance; not planned or expected”, “done without much thought, effort, or concern”, and “occurring without regularity” … Consequently, the Department considers that casual collecting would generally be happenstance without intentional planning or preparation… Consequently, it is clear that the lack of Department decision space concerning such casual collection performed by an individual reflects that the Act intended that reasonable amount and negligible disturbance criteria established for casual collecting would be below levels that would otherwise require an evaluation under the National Environmental Policy Act (NEPA). Collection of amounts and/or land disturbance at levels that would require a NEPA evaluation would require a permit.

In going so far as to define ‘casual collecting’ as occurring by happenstance, and without intent, the Forest Service has effectively turned every hobby or amateur collector into a criminal. It seems contrary to even suggest that a person be able to carry any tools at all considering the definition of casual as having intent. Let me say that when I read this all hope of ever being able to collect fossils again on public lands was lost. Because I have a genuine and sincere interest in fossils I am no longer ever allowed to pick up a fossil bearing rock again on Forest Service lands. It would be fair to suggest that anyone reading this article has suffered the same fate as I have.

The closing few sentences in their explanation offers an interesting insight into their rational. It seems that in their train of thought, using a shovel on public lands might in some way constitute a requirement for NEPA evaluation. It must be asked, has it really come to this, that a citizen of this country can no longer dig a hole on public lands for fear that it could trigger a requirement for an environmental impact statement?

Some might suggest that because this is just the Forest Service rule it does not affect them; that perhaps the BLM will take a different approach to defining the requirements (If I only shared such optimism). By law, the agencies are required to coordinate and implement the PRPA. From a somewhat pessimistic perspective, considering that I am no longer allowed to pick up a fossil on Forest Service land, I find it hard to envision that the BLM will somehow take a drastically different approach to the implementation of the PRPA on BLM lands. For reference, the BLM has yet to publish their draft rules for comment.

Living in the west I had always felt that as a citizen of this country I had a great advantage over my fossil collecting friends in the east. I have always been free to drive and hike into the deserts and mountains around me to explore, collect and enjoy the thrills of discovering fossils. That freedom has been taken from me. Because there is so much Federal (public) land in the west, very few fossils can be found anywhere else. Today, I am jealous of my friends in the east who can with permission collect fossils to their hearts content on private lands.

I fear that this will not stop here. There are some paleontologists out there that believe they are the only people in this world that should be entitled to possess or study fossils. It is no longer a distant concern that someday this agenda will be applied to all fossils, regardless of type or land ownership on which they reside. The government could declare that all fossils are held in trust by them and no person shall be able to collect or own a fossil again without their permission.

The section of the Ominbus Public Land Management Act pertaining to paleontology was a mere 2,500 words in length, only a small portion of which applied to non-professional collection of fossils. However, this act has destroyed amateur paleontology on public lands. The days of amateur contributions to science are gone. Modern bureaucrats have ignored decades upon decades of contributions by amateur collectors to the science of paleontology. There are countless collections that have been donated to museums all over the world that were the life work of dedicated amateurs, who collected fossils because of their love for learning and interest in the life that was on this earth long before ours. It is a great disservice to those that have gone before us and a tragedy for future generations that will be unable to participate in this great cause of furthering our understanding of past life on this earth.

We recently participated in the publishing of a book on the Cambrian fossils of Utah. “Exceptional Cambrian Fossils Of Utah: A Window Into The Age Of Trilobites”. In a sense this has been the culmination of a lifetime of work. Both by us, and by many others who had gone before us and have come along on our journey with us. Without the contributions of our family and so many other amateur collectors, this book would not exist. Dozens upon dozens of new species that have been discovered and described would never have been found. The long standing collaboration of professional paleontologists and amateur collectors is now dead. Without the ability to collect, to dig, to use tools, to find many thousands of common fossils in order to discover that one new species, science will suffer. I can now say again, as we were told nearly 50 years ago, ‘there is not much left to find’.

As a family we have engaged in countless opportunities to educate those around us. We love fossils and love to share them with others. For nearly a century and now spanning through nearly four generations we have given freely of our time and resources to share this love with others, whether an accomplished scientist or a child at a local elementary school. Our passion for the history of this earth is engrained in our souls. What causes the most sadness to my heart is the fact that my children and my children’s children will no longer be able to enjoy the thrill of discovery as I once did. I can no longer share this experience with them as my father and grandfather did with me. Discovery is dead…


We are now facing another critical time.  The BLM has now proposed very similar regulations in response to the PRPA with a comment period ending Feb, 6th 2017  Please learn more and provide a public comment on the regulations.  If we can get enough voices, we have a chance to stop them from being approved in their current form.