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Highlighted Comment: Craig Stevenson

Highlighted Comment: Craig Stevenson

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

RE: Federal Register Number 2016-29244

To Whom It May Concern:

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

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

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

Although the PRPA identifies that:

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

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

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

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

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

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

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

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

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

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

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

Under proposed § 49.810(a)(1), only common invertebrate and common plant paleontological resources may be casually collected. Common invertebrate and common plant paleontological resources are invertebrate or plant fossils that have been established by the bureaus, based on available scientific information and current professional standards, as having ordinary occurrence and widespread distribution. Although these particular resources may be common, they are still paleontological resources as defined in PRPA and the proposed rule. That is, they have paleontological interest and provide information about the history of life on earth. Not all invertebrate or plant paleontological resources are common. If the resources are not common, they may only be collected under a permit. It may not always be possible for a collector to identify in the field whether a fossil is common. When in doubt, collectors should err on the side of caution …………

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“The bureaus may hold a trained amateur, avocational paleontologist, or professional to a higher standard of knowledge than the general public about whether or not a fossil is common.”

and

“If a knowledgeable collector makes an unanticipated discovery of an uncommon paleontological resource while casually collecting, that collector shall not collect that resource because he or she is not authorized to do so. Instead, the collector should alert the relevant bureau. If the collector wishes to pursue collection, he or she must obtain a permit to collect the uncommon resource. If the collector does collect the uncommon resource without a permit, that collector may be subject to penalties.”

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

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

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

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

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

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

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

Proposed § 49.810(a)(3) would clarify that “negligible disturbance” for casual collecting means little or no change to the surface of the land, and minimal or no effect to natural and cultural resources. This proposed definition would specify that in no circumstance may the surface disturbance exceed 1 square yard (3 feet by 3 feet) per individual collector; that in cases of multiple collectors each square yard of surface disturbance must be separated by at least 10 feet; and that all areas of surface disturbance must be backfilled with the material that was removed in order to render the disturbance substantially unnoticeable to the casual observer. The reason for using the “1 square yard” maximum is that this would be similar to longstanding BLM practice, and such consistency is encouraged by PRPA.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Respectfully,

Craig Stevenson

 

Cc:

Office of the Secretary of the Interior

Office of the Secretary of Agriculture

Senator Dean Heller

Senator Catherine Cortez Masto

Representative Reuben Kihuen

Highlighted Comment: Carlton Brett, World Renown Stratigrapher & Paleontologist

Highlighted Comment: Carlton Brett, World Renown Stratigrapher & Paleontologist

Here is another great comment on the proposed PRPA regulations that was written by Carlton Brett.  He is world renowned for his work in stratigraphy and invertebrate paleontology.  His comments focus on how the enormous, negative impacts these regulations would have on research and the relationship between amateur collectors and professional researchers.

Brett-Letter
The End of Petrified Wood Collecting on Public Lands?

The End of Petrified Wood Collecting on Public Lands?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PRPA Rare Fossil Definition – Problems and a Solution

PRPA Rare Fossil Definition – Problems and a Solution

This is part of a series of posts drilling into some of the most unworkable parts of the proposed regulations.  It seeks to demonstrate not just where the issues are, but also propose workable solutions.

The actual law (Paleontological Resources Preservation Act) interpreted by the regulations provides a casual collection exception.  This exception allows amateurs to collect certain types of fossils without a permit.  This is how casual collecting is defined:

49.810 – Casual collecting means the collecting without a permit of a reasonable amount of common invertebrate or plant paleontological resources for non-commercial personal use, either by surface collection or the use of non-powered hand tools, resulting in only negligible disturbance to the Earth’s surface or paleontological or other resources.

One of the most fatally flawed areas of the regulations is the proposed definition for rare invertebrate and plant paleontological resources.  Here is how it is defined.

49.810 (1) Common invertebrate or plant paleontological resources are invertebrate or plant fossils that have been established as having ordinary occurrence and wide-spread distribution. Not all invertebrate or plant paleontological resources are common.

So much for providing any clarity in the definition.  I don’t know what they mean. Do you?  Does the enforcement officer?  Do they?  It is left totally up to interpretation, and everyone will have a different interpretation.  Furthermore in their analysis section they state:

“Under proposed § 49.810(a)(1), only common invertebrate and common plant paleontological resources may be casually collected. Common invertebrate and common plant paleontological resources are invertebrate or plant fossils that have been established by the bureaus, based on available scientific information and current professional standards, as having ordinary occurrence and widespread distribution. Although these particular resources may be common, they are still paleontological resources as defined in PRPA and the proposed rule. That is, they have paleontological interest and provide information about the history of life on earth. Not all invertebrate or plant paleontological resources are common. If the resources are not common, they may only be collected under a permit. It may not always be possible for a collector to identify in the field whether a fossil is common. When in doubt, collectors should err on the side of caution and collect only the resources that they know are common. The bureaus may hold a trained amateur, avocational paleontologist, or professional to a higher standard of knowledge than the general public about whether or not a fossil is common. If a knowledgeable collector makes an unanticipated discovery of an uncommon paleontological resource while casually collecting, that collector shall not collect that resource because he or she is not authorized to do so. Instead, the collector should alert the relevant bureau. If the collector wishes to pursue collection, he or she must obtain a permit to collect the uncommon resource. If the collector does collect the uncommon resource without a permit, that collector may be subject to penalties.

One of the key elements of the PRPA was that the “casual collecting” of fossils was still allowed and encouraged. As written, the proposed regulations fail to do this. In fact, they do the opposite. The ambiguity introduced by the proposed rule imparts an element of risk on the part of every collector.

It says that a “casual collector” should “err to the side of caution” when deciding what to pick up and what to leave in the ground. It does this without ever defining what constitutes a common fossil and what constitutes a rare one. This places the sole burden on the collector to make that call, rather than the authorized federal agent, who is really the only one authorized to determine that. Given the penalties (high fines and possibly five years in jail), who would want to risk it?

The rule even points out that avocation collectors and professionals “WILL be held to a higher standard”, though again this is also never defined.  If I was an amateur collector, particularly a knowledgable one I don’t think that I would ever pick up a fossil again on public land if this rule passes.  The significant risks exceed the reward.

Even worse the collector is instructed to leave any rare, or potentially rare fossils exposed in the field.  This is done without any process in place or resources allocated to assess, and collect them later.  The natural environment is not static. Erosion and weathering are the primary destroyer of fossils.  With large vertebrate fossils, the time it takes erosion to damage/destroy them is typically measured in years or even decades.  Invertebrate and plant fossils which are frequently preserved as no more than a thin shell or carbon film on a rock are much more susceptible to mother nature.  For them this timeframe is often days and weeks.

Instructing a collector to leave a rare and potentially important invertebrate fossil in the field is basically ensuring their destruction by the elements and loss to science.  That does not sound like very good management policy to me.

So what is a solution for this?

Key elements of proposed solution

  • It works within the constraints of the law.
  • It is handled under the casual collecting guidelines (no new permit process).
  • Eliminates risk on collectors of inadvertently running afoul of the law.
  • It allows important fossils to be collected, so they don’t erode to dust.
  • It makes sure that important specimens get into a repository without trying to push the heavy burden of locating one onto the collector which would be impossible in most circumstances.
  • It’s actually workable.

Update the definition of rare invertebrate and plant paleontological resource to read

We recognize that not all invertebrate or plant paleontological resources are common. However, invertebrate or plant paleontological resources will be considered to be common until determined otherwise.”

The implementation

  • The agencies will publish guidelines of what might be considered to be a rare invertebrate or plant fossil online. They may choose to define this broadly or granularly, it’s flexible. The important part is it’s publicly accessible, in a single place online and has historical change tracking.  Simple wiki software would provide an easy, cost effective solution.  It’s in there best interest not to define it excessively broad as it will create a lot of extra work in the next bullet points.
  • If a “casual” collector collects a fossil that meets one of the guidelines of being potentially rare they must submit a report of it to an authority (TBD by agencies) within 90 days of collection. This authority might be a state paleontologist, BLM expert, etc.
  • This authority may request photos or physical in-person inspection of the specimen to determine whether or not it meets the criteria of a rare invertebrate or plant paleontological resource.
  • The authority is required to respond within 90 days of the report by the collector.
    • If they determine it is a rare invertebrate or plant fossil, the agency will provide an approved repository that will accept the fossil. It is the responsibility of the agency to arrange this, not the collector, as this would be impossible for most amateurs. If no repository is willing to accept the fossil, it is obviously not important enough to be considered rare.
    • The collector then has 90 days to hand over the fossil to the repository.
    • If the authority fails to respond to a report within 90 days, it is assumed that the specimen is not a rare.
    • There is no “reach back”. If the authority determines the specimen is does not qualify as a rare paleontological resource, either in writing or by failure to reply within 90 days they can not come back later with a different determination.
  • If the specimen is deposited in a repository, the name of the collector is recorded along with it so that they get credit for the discovery.  This is an important piece, to help provide additional incentive for the collector to follow the process.

Further discussion:

The no “reach back” clause is absolutely critical for this to work.  It provides the collector with some sense of security that they won’t be approached years later and asked to surrender a specimen that has already been reviewed and determined not to be rare. Particularly in the case where substantial amounts of time/money may have been invested by the individual on preparation. I certainly wouldn’t want to spend 100+ hours preparing a trilobite fossil and then be asked later to involuntarily surrender it with no compensation for my time because someone wanted to use it for a museum display.  If the decision can be changed later on, it eliminates much of the incentive to make a report in the first place.

Specifying clear time limits such as 90 days is also critical.  You don’t want the whoever is the authority not responding or responding years later which is unfortunately too often the case with government agencies.

Some general guidelines that should be following when defining what might be potentially rare.

  • Rarity should be correlated with scientific importance.  Just because a specimen is an exceptionally nice, aesthetic specimen does not necessarily make it rare.
  • Just because a species is currently undescribed does necessarily not make it rare.  Many very abundant fossils are still awaiting scientific description, not due to lack of material, but lack of people doing work on them.
  • If enough material of the particular species or type of fossil is already stored in repositories for scientific purposes, it’s not rare.

 

Highlighted Comment: Linda McCall, President North Carolina Fossil Club

Highlighted Comment: Linda McCall, President North Carolina Fossil Club

Below is the text of an exceptionally well written comment to the regulations by Linda McCall, President of the North Carolina Fossil Club.  It may provide some inspiration and talking points for your own comments but  please do not resubmit as your own comment or copy & paste.  Remember we need as many constructive, public comments as possible, please post your own on the regulations.

PRPA_Comments_Linda_McCall (2)
Highlighted Comment: Walter Stein of PaleoAdventures

Highlighted Comment: Walter Stein of PaleoAdventures

Walter W. Stein
PaleoAdventures
January 17th, 2017

RE: The Paleontological Resources Preservation Act (PRPA) and the Proposed Rule “Paleontological Resources Preservation” for BLM, BOR,NPS, and FWS

Dear committee members, government officials, members of the paleontological community and concerned citizens:

I am writing to express my concerns regarding the new proposed rules for the management of paleontological resources on our shared federal lands. While I thank the scientific community and the various bureaus for their hard work, dedication and passion for preserving our ancient history, I fear that these new regulations need to be revised and rewritten. I would argue that these new, proposed regulations exceed the original intent and mandate of the PRPA, while unfortunately falling short of its noble goals.

The following elements of the proposal are deeply troubling:

1) The proposed rule essentially treats archeological remains, vertebrate paleontological remains and invertebrate paleontological remains as moral equivalents, to be judged and managed in a similar fashion. The authors and supporters of this rule are clearly operating on the underlying philosophy that archeology, vertebrate paleontology and invertebrate paleontology are all one and the same, when the three studies are actually quite different in scope, methodology, and ethics.

Archeological remains have a cultural and historical importance and great care should be taken to account for this. Respect must be given to these sites and to the Native American descendants who often live near these areas. While it is clearly unethical to casually dig up the remains of human ancestors, it is NOT unethical to dig up the remains of extinct organisms that lived in this area long before man was smart enough to draw lines on a map. Ammonites, trilobites, corals, plant fossils, pelecypods, gastropods, fossil fish, fossil mammals and yes, even dinosaur bones are not cultural artifacts. Their closest living relatives have neither the will nor intellect to care. They are geological specimens, important to understanding the history of the Earth, yes, but nothing more. Paleontological resources are not archeological resources and they should not be treated as such. Management policies should reflect those differences.

Likewise, vertebrate fossils are often more rare, more geographically isolated and are more difficult to excavate than invertebrate and plant fossils. Management policies should reflect this. While it might be unethical for someone to come along and pull a vertebra from an otherwise complete dinosaur skeleton, it is not unethical for someone to collect a single brachiopod from a layer containing thousands of brachiopods or a shark tooth from a sandstone containing thousands of shark teeth. While it may require more advanced training (notice I did not say “advanced degree”) to properly excavate and document a vertebrate skeleton, it does not require an advanced degree to pick up a weathered out trilobite from the surface of a barren landscape few people will ever dare to visit. This means that the management styles for these broad classifications of resources must be different. As written, the proposed rule lumps invertebrate collection within the same broad management plan as vertebrate collection.

It is also very important to remember, that these fossils do not come out of the ground with specimen tags. In most cases, particularly with invertebrates, it is impossible to determine whether or not a specimen is rare or significant in the field. It often requires an abundance of fossil preparation and hours of research in the lab to make this determination. Amateur and avocational collectors should be able to collect any invertebrate or plant fossils they find without fear of fines or imprisonment.

SUGGESTION: I would respectfully suggest that you have two completely different sets of proposed rules. One for vertebrate remains which should have tighter permit requirements and one for invertebrate and plant remains which should have little to no permit requirements.

Another option would be to have a casual collection permit and report system for BLM lands, similar to that maintained by the state of Florida (https://www.flmnh.ufl.edu/index.php/vertpaleo/amateur-collector/fossil-permit/) for common vertebrates, invertebrates and plants. This would be the most appropriate methodology to encourage casual collecting and reporting on common AND rare species/locales. This encourages casual collection and reporting rather than discouraging it. More boots on the ground mean more discoveries, more science, more cooperation between avocationalists and academics, free and open research, and more people out there watching for and reporting on illegal activity.

2) The rule grants too much authority to the “authorized officer”. As written, the rule grants to the authorized officer, the power, at their sole discretion and subjectivity, to determine what constitutes: A) a “common” or “rare” fossil; B) what constitutes a “negligible disturbance”; C) When and where collections can take place; D) If a section of land will be open to casual collecting or shut down; E) which repositories receive federal approval; F) which collections can be transferred to working collections or non museum collections; and G) Whether or not a collection still is regarded as having paleontological interest and thus still considered to be “paleontological resource” 49.210 as defined.

This ambiguity and lack of detail will cause all manner of troubles with management of these resources. Who is this oft mentioned “authorized officer”? Is there just one of them for each bureau or are there multiple authorized officers in each bureau for each region? What is their criteria for employment? How is their work monitored and reviewed? Do they have the budget and manpower to achieve these tasks? Is the authority granted herein enforceable and actionable or does the situation set the authorized officer(s) up for failure and thus calls for more draconian measures in the future?

One of the key elements of the PRPA was that “casual collecting” by amateurs, avocationalists and local educators was still allowed and encouraged. As written, the proposed rule fails to do this. In fact, it does just the opposite. The ambiguity introduced by the proposed rule imparts an element of risk on the part of every collector whether they are trained academics or enthusiastic amateurs. The proposed rule stifles paleontology by imposing a high degree of risk on the part of the collector. It says that a “casual collector” should “err to the side of caution” when deciding what to pick up and what to leave in the ground. It does this without ever defining what constitutes a common fossil and what constitutes a rare one. This places the sole burden on the collector to make that call, rather than the authorized federal agent whose really the only one authorized to determine that. Given the penalties suggested (high fines and possibly five years in jail for removing a potentially rare fossil), this imposes high risk on the collector. The rule even points out that avocationalists and professionals “WILL be held to a higher standard”, though this is also never defined! If I was an avocationalist or an invertebrate or plant researcher I don’t think that I would pick up anything on public land if this rule passes, as the risk exceeds the reward. Paleontology on public lands will effectively become the endeavor of only a select few professionals in the approved loop. I don’t think that is what the PRPA intended.

SUGGESTION: Clarify specifically what constitutes a “common fossil” and what is a “rare” or “scientifically significant” one. Finally agree upon a working definition for these. This could be as simple as “all invertebrate and plant fossils are considered common until proven otherwise and may be casually collected for non commercial personal use…”, or as specific as providing a federal webpage that specifies which families or genera of ancient life are considered “too rare” for casual collection. If found, these rare specimens would need to be turned over to the authorized agents as soon as possible. This could be similar in scope to the endangered species list maintained by the US fish and wildlife service. https://www.fws.gov/endangered/

If it is decided that a web page would be best, it would need to be updated annually and it would be the responsibility of collectors to know which specimens could be kept and which couldn’t. In order to assist in identifications, the list would possibly need a photographic field guide, complete with images, measurement data, brief descriptions and geographic or geologic range data in the same vein as the endangered species list mentioned above. It would also be highly beneficial if this guide included a section for “permit eligible” researchers who were interested in publishing on those specimens, to add additional notes, images and their personal contact information.

The “rare” or “off limits” list, would certainly be difficult to maintain, but it would solve much of the current ambiguity in the law. It would also have the benefit of being very flexible, allowing for local variations and needs. The list could apply for all federal lands or it could be altered for different states, regions or rock formations as determined by the authorized agents. For example: In one rock formation crinoid stems might be found in every rock fragment and perfectly reasonable to casually collect. However, in that same rock formation a plate of crinoid calyxes from the same species might be incredibly rare and restricted to collection by academics, by permit only. In one state shark teeth, or dinosaur bone fragments might be quite plentiful, but in another highly restricted. It makes for flexible, local regulation based on the reality of the situation rather than either a broad brush or an ambiguous one. This would be no different than a fisherman going into a river and knowing that they can keep up to three, 14 inch brook trout/day, but need to throw back any sturgeon of any size that takes the bait. This takes the ambiguity and subjectivity out of the situation, setting the rules in concrete each year, while still allowing the authorized officers to determine what is rare and what isn’t based on new data or new resource protection needs.

3) Management of paleontological resources are done with complete confidentiality outside of public scrutiny. 49.75 (1) and 49.25. As written, the rule gives authority to the authorized officer to make determinations on who gets permits, when and where fossil collecting can take place, which repositories are acceptable and which are not, etc. etc. etc.. It also specifies that the locations and nature of all these permitted collecting sites are kept entirely confidential unless permission is granted by the authorized officer. Aside from the fact that this is a possible freedom of speech issue, against the intent of the Freedom of Information Act, AND contrary to good science and the accurate reporting of contextual data, my question is… who is watching the watchers?

Effective governance REQUIRES supervision by a concerned populace. The people need to know if these resources are being managed correctly and efficiently. We can not simply sit back and take your word for it. We need to know how many sites are out there and when and if permits are being issued? Are the specimens being excavated or are they left to rot? How long does the permit process take? How much does the average site cost to maintain and police? How successful are those policing methods? Where are the fossils collected being curated? How often are those organizations reviewed? What organizations are excavating and which ones aren’t? etc. etc. etc. How can we accurately determine any of this if the site locations and field data regarding them are held confidential? How can we do this if key statistical data is withheld?

More importantly, how can we judge any scientific research done on these lands if key information like location, stratigraphy etc. is kept secret? If I am an amateur doing a paper on fossils in a public repository that were collected on BLM lands will I be given that contextual data, or am I not approved unless I’m in the employ of a federally approved repository? What if I’ve sold fossils in the past and want to have access to contextual information for valid educational or research purposes? I’d be surprised if any avocationalists, independents or commercial paleontologists will meet these elitist requirements. Again, this limits the number of people that are “acceptable” when it comes to paleontological research restricting research and collection to a select few in the approved loop.

I understand that the goal is to hide sensitive sites from poachers and vandals, but this strategy of confidentiality has not worked in the past and it will not work in the future. I am an independent, commercial paleontologist. By law, I can only work on private land, and that is perfectly fine by me! As a result, we contact local ranchers and obtain written contracts to work the private land. I have worked one of those ranches now for over ten years. In that time, as part of our educational mission, we have taken over 1500 guests and researchers out to visit our main quarry. Over 1500 people know exactly where this site is! Others can see the location on Google Earth. We are completely open with the site location and freely reveal map data, photos, videos, documentation, site logs, etc. for guests and scientists to review upon request. In all that time, I have NEVER had a single person trespass on the land, vandalize the sites, contact the land owner behind my back or attempt to steal the contract. Why? Its simple… everyone knows who is controlling it. Everyone knows that the site is well monitored by myself and the land owner. It’s protected and that I am managing it. Should anyone ever try to vandalize the property or undermine my contract there would be legal and ethical consequences. They might face jail time if caught or face damage to their reputation if they tried to weasel in. It also means that I need to be on MY best behavior and treat my land owner with the highest level of care and respect. All of this could certainly change overnight (knock on wood), but so far openness and honesty has been the best protection; sunlight the best disinfectant.

On public lands, however, there is openness in access (leading to accidental discovery and vandalism), but no openness in information. The general public has no idea how many fossil locations are on public land or whether or not they are efficiently being collected and studied or left to wither and decay. We have no empirical data regarding vandalism- only allegorical stories. We have no way to independently verify reports to determine what is damaged, the extent of that damage or the intent (commercial reasons, accidental reasons, malicious vandalism, etc.) of the people responsible for the damage. The policy in the past has been to keep locations confidential. To rebury and forget. To hope no one stumbles on a site until the permit process (the following season or seasons) is complete. So far this has not worked. Instead of learning from this mistake and taking this wonderful opportunity to address it, the authors of this rule have double downed with the same failed policy.

SUGGESTION: Do the opposite. Remove the confidentially requirements and publicly mark where sensitive sites are located and who has the current permit. This should be done on BLM maps as well as marked in the field itself. Sites should be mapped, cordoned off, posted with signs and monitored using motion cameras, paid BLM agents and volunteers. Notices outlining penalties for tampering with the site should be clearly marked, both on site and any maps. These areas would then be off limits to everyone not on the permit. There is no ambiguity in this case. No one can claim ignorance or accident should they touch the site. Conversely, no one can claim “proper management” if the site is a mess, never monitored or policed or never excavated. This also will show legislators the extent and importance of the fossils on federal and might help the BLM raise capital to effectively hire more staff to better protect the resource.

4) Casual collecting only allowed on “certain lands”. 49.40 – 49.5 (a)? The proposed rule states in several sections that the “authorized officer may restrict access to an area or close it off from casual collecting”, but does not outline: a) how this is determined, b) if there is a review and comment period, c) if and how people can petition to change that designation, d) when this is done/reviewed and e) how the public is notified (marked in the field, on maps, at the office, on a website). Again, all liability seems to rest upon the collector to know an authorized officer’s determinations with no liability for the authorized officer to disclose or relate this to the public. I can foresee a situation where an amateur collector may have checked one year on the legality of hunting in an area, only to come back in subsequent days, weeks, or years without checking and suddenly find themselves breaking the law. There is also the potential problem of older collections from these sites, that appear to be illegal, even though they were collected prior to the change. AND lets not forget the possibility of an authorized officer, with an axe to grind, cutting off as many areas as they can, because they can. This is not in the spirit of the PRPA and there needs to be some oversight. Good laws protect everyone. This law only protects the authorized officer.

SUGGESTION: Clarify and elaborate on the rule here to prevent future issues. Outline a public review process with notification requirements for any changes to land status.

5) Even research without collection requires a permit 49.50 (b). This section, which requires a permit to conduct research on public lands, is most likely, a violation of the First Amendment and the right to free speech. Research that does not involve collection should never require a permit! Research that involves fossil plants, invertebrates and/or minimal disturbance should never require a permit from the government. Research that attempts to measure stratigraphy or geology of a public region, should NEVER require a permit.

SUGGESTION: It needs to be removed entirely.

6) No leeway for emergency powers. 49.50 (c) Provides no emergency powers to federal agents and employees to remove fossil resources, in the event of an emergency, without a permit. What if a fire or flood event hits an area and there is no time for authorized officers or conscientious collectors to report or beg for a permit? Someone should be exempted in a natural emergency without fear of imprisonment or fine if removal of a specimen is the only way to save the specimen.

SUGGESTION: Provide a separate clause that outlines situations where authorized agents and those they employ, or request assistance from, may collect a fossil resource that is under threat of natural disaster, vandalism, or destruction. Provide guidelines for temporary repository status without a permit.

7) Death of the collector provision. The proposed rule does not address what casual fossil collectors should do with their collections upon their death. Legal loopholes would exist if descendants of the collector decide to sell, trade or transfer the collection. By stating that collectors can keep fossils for their personal collections, but restrict them from selling, trading or transferring it, then the fossils are not really private property OR public property, but rather some ambiguous new classification of property.

SUGGESTION: Not sure how to fix this situation other than to allow these collections to be sold, traded or to require that they be donated to a working educational collection upon the collectors death. Either way, it will be very difficult and expensive, if not impossible, to police this.

8) Requirement of an advanced degree clause 49.60a.1. As written, it is impossible for an experienced amateur or avocationalist to receive a permit to collect scientifically significant vertebrates, invertebrates, or plant fossils. As written it is impossible for them to obtain a permit to conduct non-collection based research. I expected this rule for vertebrate specimens (though I disagree with it), which do require some advanced training to excavate and document correctly, but it is excessive, elitist and unnecessary when applying this standard to invertebrate specimens.

SUGGESTION: Please see my suggestions for a casual collector permit in section 1.

9) 49.75(3, 8) – “Not put at risk” or “protection from harm” clause. These phrases are not defined or clear here. As written, it makes permittees completely liable for anything that happens to the fossils during excavation, including accidental damage, theft, or vandalism.

Despite being responsible, they are apparently not authorized to fence off, post, or alter the site in “any” way. They must also (6) accept that other uses (hiking, biking, ATV racing, hunting, fishing, rockhounding, etc.) may occur in the same area and take steps to avoid or minimize conflict. Section 6 directly conflicts with section 3. Either they are responsible for protecting the site or they are responsible for keeping access open. I can not see how one can do both. This puts researchers in the uncomfortable position of having to defend their sites rather than the authorized officers who are trained for this and ultimately responsible. Permittees should be focused on research and authorized agents and officers should be responsible for protecting and monitoring the site.

Despite making the permittee responsible for the safety and security of the fossil resources under their permit, there is no mention of repercussions should they fail in this task. It does not outline how they are liable or what the penalties, if any, will be, if a site is damaged by guests and personnel under their watch.

SUGGESTION: Change the wording of 49.75 (3) to: “Permittee is responsible for maintaining a safe, secure and well organized site. They are responsible for any research associates, volunteers, or guests that they allow to visit the site. Any excavation or research conducted on site, under the permit must ultimately keep the fossils safe from harm. Failure to do so may result in the revocation of the permit. Authorized officers are ultimately responsible for the security of the site and keep any impact to other land uses to a minimum.”

10) What is a working collection? According to the definition, ” a working collection means a paleontological resource collections that are not intended for long term preservation and care as museum collections.” This sounds like a fantastic idea, but what are the rules governing these collections? If they are not stored at an approved federal repository, then where are they stored? Can they be given away? Traded? Sold? Disposed of in the garbage? Who decides who receives these working collections? Once transferred into a working collection, are they still “owned” by the US government? That is their legal status of title?

SUGGESTION: Provide a more detailed definition of this and a separate section involving the rules governing, care, disposal and distribution of these collections. This could be a great way to ensure public fossils are used in small local museums and small colleges that are not eligible for public repository status and K-12 classrooms that could use the specimens for education. Any distribution must also be fair and balanced.

11) 49.75 (14) The permittee is responsible for curation costs? Section 14 of this clause outlines monetary responsibilities of permit holders. The list includes things like: costs for excavation, data analysis, and report preparation, which are all logical financial costs incurred for any excavation/research project. Unfortunately, it also mentions curation costs in the language, which does NOT seem to be something that most researchers would be able to afford. Does this imply that permit holders are responsible for curation costs in perpetuity (even after their death!)? How would these costs be assessed? Collected? How many researchers will wish to take on this legal and financial burden? This paragraph assumes that the permit holder and the repository are always one and the same. Not sure if that is true. This needs to be reworded or clarified.

SUGGESTION: Curation expenses should be the responsibility of the federally approved repository that is willing to accept the collection.

12) 49.215.a11- The fossil prep clause – As written, “employees [of approved repositories] cannot take any action that results in collection encumbrance, seizure, theft, damage, or other issues.”

Fossil prep, however, can often be damaging to a fossil specimen and some research projects may, at times, lead to the destruction of a specimen (thin sections, acid etching, accidental drops, etc.) Are fossil preparators and conservationists going to be held liable for accidental damage to specimens or research that might lead to damage to the specimens. If so, what are the penalties and who is going to take this risk?

SUGGESTION: Could be a simple fix by removing the word “damage” or changing it to “willful damage”. If not, there should be a separate clause that outlines policies and procedures for fossil prep and destructive research and/or penalties on the repository should damage occur beyond the scope of the agreed upon research plan.

13) 49.300 b/c. The “should have known” clauseIn the United States fossils collected from private lands can be bought, sold, traded, bartered, etc. as private property at the sole discretion of the property owner. The PRPA does not in any way shape or form outlaw fossil collecting on private land and this is a very VERY good thing. However, the same fossils that can be found on private land are often found on public land and often just on the other side of the fence. This poses a problem for land regulators AND collectors, because once a specimen is removed from public land it is nearly impossible to know for certain its place of origin beyond the level of rock formation.

Sometimes a fossil that was illegally removed from public lands will wind up in the commercial market. This is very unfortunate and every effort must be made to prevent theft and vandalism of these wonderful fossil resources. Section 49.300 b and c, however, penalize and target unaware buyers and sellers of fossils who, through no fault of their own, may accidentally purchase an illegal specimen, resell or trade an illegal specimen, transport an illegal specimen, or work with/on an illegal specimen.

For example: I will occasionally take on contract fossil jobs to help supplement my income. My clients often buy fossils on the open market and then have me prepare them. I will usually, make my clients sign a waiver stating that they are guaranteeing that the specimen was legally and ethically collected and that any claims against this are the sole responsibility of the client. Unless there is some sort of indication from the buyer that it is illegal though, I would have no scientific way of knowing that a fossil was illegally removed. Unfortunately, according to these proposed rules, I would be just as guilty as the vandal and thief for preparing, transporting and working on it.

SUGGESTION: The phrase “should have known” should be removed.

14) “Negligible Disturbance restricted to 1 x 1 yard square excavations? If any of the language in this rule indicates that it was written by archeologists (or at the very minimum vertebrate Quaternary specialists), with no understanding of Mesozoic or Paleozoic age invertebrate digs, this is it. I have been professionally excavating vertebrate specimens now for over 20 years. I’ve worked on over 30 major specimens and dozens of minor ones. I’ve worked on Mesozoic ammonites, and pelecypods out west and Paleozoic crinoids, trilobites, brachiopods, etc. out east. The number of locations where the sediment was soft enough to excavate in neat 1 x 1 yard grids I could count on one hand. Paleontological resources can be found in all manor of sedimentary rocks where neat grids are not practical nor possible. Dense sandstones, limestones, silicified shales, conglomerates, etc., where many plant and invertebrate fossils can be found, are often too hard for neat square excavations. These often break in irregular fashion impossible for neat rows and grids. Grid excavations are fantastic for soft, unconsolidated rocks, and may be fine for Quaternary vertebrates in Florida and Nebraska, but won’t work for much beyond that.

Also… the specific rule states this: “In no circumstance may the surface disturbance exceed one square yard”. Are you telling me that in all your paleontological knowledge you can think of NO circumstance that might require a collector to dig a larger excavation? I can think of multiple, non-permit requiring, reasons why this might be necessary, including but not limited to: a) removal of overburden, b) the specimen is larger than three feet (common ammonites like Placenticeras or Calycoceras, petrified wood, large plates of fossil plants and invertebrates all can be quite large and breaking them into smaller pieces is ludicrous and contrary to preservation goals), c) work begins on a smaller specimen which leads to a larger one that is beyond the boundaries of the excavation, d) The rock breaks in an irregular fashion exceeding the maximum dimensions, etc. etc.

This one line basically says that anything other than picking up weathered scraps is now banned on public lands. If that is the goal and the intent, then please just say that.

SUGGESTION: Please remove this section entirely and replace with something similar to: “negligible disturbance means low impact excavations completed without the use of any power tools or heavy equipment.” If necessary to add some quantification then perhaps: ” not to exceed a maximum depth of 1 meter and width of 2 meters”. Any excavations beyond this will require a permit.” Remove the separation between diggers otherwise you will have gopher holes all over the place. Also, please use meters not yards as the standard unit of measurement.

In summary… the protection of fossils on our shared public lands is an issue where all sides should be on the same team. We all want to share, protect and work with America’s fossil treasures and we can and we should. Working together, under a clear, well thought out, management plan, we can ensure that scientifically significant specimens go into a public repository, while at the same time the rights of rockhounds and fossil hunters to enjoy their hobby can be protected. The PRPA is not perfect, but it is a step in that direction. These rules as written, however, require significant revisions to ensure that all sides are being represented.

You have, if you choose to accept it, an army of ready and willing volunteers, with eyes and boots on the ground, to help discover, excavate, research and protect our wonderful fossil resources. It is now up to you to decide whether you wish to accept that help or disenfranchise those who offer their passions for free.

Thank you for allowing this forum and the time to express our views on this very important subject!

Sincerely,

Walter W. Stein

Paleontological Resources Preservation Act and Permitting – A Misadventure

Paleontological Resources Preservation Act and Permitting – A Misadventure

Note: The author of this article has chosen to remain anonymous because their job requires daily interactions with the BLM, Forest Service and other agencies involved.


Some of you may already know me. I am a citizen scientist. I have stacks of rocks and dirt in bins and bags. I geek out on crinoids. I love pulling my hand lens out to show someone the wonder of serrations. I have a rock hammer in every vehicle and shale chips on the floor mats. It all started with trilobites in the rocks of a waterfall in Jacksonburg, Ohio, where I was a little farm girl. But here’s the thing- I tried very hard to be one of the lucky few that gets to sit in the ivy coated, brick buildings of academia, looking at the important stuff. What I learned, after packing my hatchback with camping gear and heading out west for a 4 month study of Sustainable Development, is that the wonders of paleontology can and should always be available to EVERYONE. The problem is, the systems in place to manage our contributions are overwhelmed and often closed to all but those in the highest positions.

I was very fortunate. I had a paleontology professor that believed that everyone could be a scientist. He championed my journey to learn what it takes to search, find, and study dinosaurs- on a very tight budget. I made incredible friends who gave me access to private land and shared their knowledge. Here are some things I learned along the way that pertain to the Paleontological Resources Preservation Act (PRPA).

Fossil collection in academia is highly competitive and very difficult to secure funding. Institutions must find and then fund their digs after a lengthy application processes. I visited the Burpee Quarry in Hanksville, UT, for instance. A kind site manager explained to me that no, they can’t take volunteer diggers, because each person there was paying HUNDREDS OF DOLLARS A DAY to be there. This is so the dig can be funded. There is an academic process for permit submission, and typically only institutions with deep pockets can ever break ground. Top-tier employees at Federal agencies get to select who extracts the fossils. It doesn’t necessarily matter who found them. There are countless fossil treasures eroding away, that no museum or college wants, as well as those that would be considered off-limits by PRPA.

There is a huge volume of reported fossil discoveries, but the Federal agencies have allocated few resources to following up and assess them. The BLM and Forest Service get their budgets cut, which means the personnel in the local offices have less time to follow up on that unusual rock that someone reported as seeing in some wash. I made an appointment with the generous BLM folks at a regional office, and learned that while there are many really amazing discoveries made, there is also a huge backlog of reported finds that have not been investigated, and many of which never will. Not to mention potential discoveries made during oil exploration, mineral extraction, coal mining, a new road…these places have to be checked out by designated professionals. Unless a giant professional Federal workforce is funded by the taxpayer and devoted to assessing the reports made by the public…. there is no way to follow through with many basic tenants of the PRPA.

To get a permit to extract a fossil and study it, you must have it stored in an approved repository. This is probably the most impossible aspect of the permitting process. From my experience, these repositories are already overtaxed and do not have the resources to store or curate what is already being found. I went to a college consortium with its own fossil museum, and had a professor that advocated for me to store a six inch piece of dinosaur bone (collected on private land) that showed signs of blood vessel preservation and still, I could not find a repository. No room. I didn’t even get responses from some museums. Consequently, this renders the task of getting “less important” finds into a repository, nearly impossible. Really, if it’s not a new species or growth form, no one seemed interested in giving up the space.

Editors note: This is going to be one of the aspects of the permitting process which will kill off the majority of invertebrate and plant fossil research currently done on public lands. EVERY fossil collected during the course of research needs to be stored at an approved repository and curated to specific standards. This includes, every brachiopod, every conodont sample, the thousands of trilobite fragments collected which later prove not relevant to the research.

The approved repository needs to be identified before a permit is issued.  This is often before it is even known exactly what will be found and stored there. There is a ton of paper work and time involved for everyone, the researcher, the repository, and the staff of the agencies. The limited number of approved repositories do not have the space or resources to manage the amount of invertebrate and plant material currently collected during research.  It is many times the number of vertebrate specimens they currently must handle.  Yet, the Economic Impact Statement claims this additional requirement will have no negligible cost impact on approved repositories, huh?

I understand the importance of trusting the well-studied PhD- but we also live in an age where knowledge is at our fingertips, and people who were not fortunate enough to have the time or money for a doctorate, can be knowledgeable, persistent, gifted, and lucky. I had a dinosaur bone from private land, with a piece of it thin-sectioned and showing possible blood vessels- and I couldn’t get through the first basic steps needed to publish on my discovery. Also, I graduated with no financial means to enter grad school. I spent weeks backpacking the Utah desert looking for exposures of that same layer and the treasure trove of bones discussed in local circles. And you know what- I think I found it. But by then, I had learned, that even if I found those bones, I would probably never be able to get them out of the ground. Best to walk away with clean conscience, than deal with the futility of red tape. The BLM or Forest Service decides which well-funded institution gets to extract the bones. The associated professors choose their own students and colleagues to do the extraction. THIS IS THE SYSTEM ABOUT TO BE INSTITUTED FOR ALL FOSSILS, NOT JUST VERTEBRATE MATERIAL.

The new PRPA regulations would make a learning adventure like mine: backpacking and collecting fossils to bring back to college for study…practically impossible. I collected all kinds of interesting things, legally. I learned so much about geology and paleontology by doing so. The PRPA rules tear these opportunities away from everyone but those in high places. On my adventures, I met incredible, professional and amateur collectors with a body of knowledge that was mesmerizing. They included me, mentored me, and helped when no one else did. They showed me the grit and sweat of the trade, and opened my eyes to this incredible world where I can be a scientist and investigate my world without a permission slip. I can just hike and discover. Maybe I find a leaf, or a fossil beetle, or a trilobite…. but I am always on the lookout for something extra-special. I am in the field, my eyes on the ground. A person in a brick building, teaching classes, may be way more knowledgeable than us…. but their eyes are not on the ground everyday, like ours.

Finally, I want to address the trust issues between the amateur and hobby fossil collecting world, and that of academia and Federal agencies. I mean no disrespect to those who have worked, studied, and sacrificed to be in the privileged positions which they hold. I very much want to be one of you. But I do not have the circumstances you have. I do have a gift for noticing things on the ground. And I have a voracious mind that devours books, and knowledge. This is the same with much of the amateur fossil collecting community. We are out there to discover and SHARE. What is the fun of finding something, and telling no one? Amateur collectors, and even commercial ones are some of the most knowledgeable individuals in the world, regarding the specimens they deal with. In my experience, the amateur community has spent massive amounts of their own time and funds publishing books, contributing to the Smithsonian and museum collections, and carefully preparing and preserving fossils. If an oil company can rip through the fossil layers for black gold, then a person should be allowed to sit down with their child and split some rocks for a trilobite- without the fear of fines or imprisonment.

Let’s keep this all in perspective. If the academic and Federal community is concerned about preserving significant finds, then they should welcome with open arms, the people that make the discoveries and who want to share without reprisal of being cut off from their interests. Maybe that means letting a family take their kid out to look for fossils without fear of running afoul of the vaguely defined and impractical rules. That way they grow up with their eyes on the ground, also.

Please learn more about the problems with the proposed BLM regulations and make your voice heard before the Feb 6th public commenting deadline.

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.