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Statement From The Southern California Paleontological Society

Statement From The Southern California Paleontological Society

Below is the text of an exceptionally well written comment to the regulations by Karol McQueary, President of the Southern California Paleontological Society.  It may provide some inspiration and talking points for your own comments.  DO NOT RESUBMIT AS YOUR OWN COMMENT OR COPY & PASTE

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December 26, 2016

Re: Docket No. NPS–2016–0003. RIN 1093-AA-16. Comment on proposed Rule on Paleontological Resources Preservation Act of 2009.

To Whom It May Concern:

This letter is written by the Southern California Paleontological Society (SCPS), with support from other organizations and professionals concerned with preserving, responsibly collecting, managing, or studying paleontological material. SCPS has nearly 130 dues-paying members and is the sole club devoted exclusively to paleontology in Southern California. Many SCPS members work closely with the Natural History Museum of Los Angeles County (NHM) as volunteers, docents, and fossil preparators or work with the Invertebrate Paleontology Research and Collections Department of the museum assisting with fossil curation. To advance our goals of research and education, SCPS members use their personal collections in presenting programs to Los Angeles and Orange County public elementary schools and community groups. In addition, several SCPS members have donated their extensive collections to the Natural History Museum of Los Angeles County (Invertebrate Paleontology Research and Collections Department); to the Museum of Paleontology, University of California, Berkeley; and to The Biology Bus and Afterschool Center in New York City.

SCPS is a member of both the American Federation of Mineralogical Societies (AFMS) and its regional affiliate, the California Federation of Mineralogical Societies (CFMS). CFMS represents 108 gem-mineral-lapidary-fossil clubs located primarily (but not exclusively) in the State of California. CFMS represents 8,483 dues-paying members in aggregate. AFMS represents seven regional affiliates with 50,460 members in aggregate throughout the United States. CFMS and AFMS affiliates are signatories to this letter not only because of values shared in common concerning paleontological resources and member participation in avocational paleontology, but also because the proposed regulation under the Paleontological Resources Preservation Act of 2009 (PRPA) addresses in some places provisions of the Federal Land Policy and Management Act of 1976 (FLPMA), which therefore, might be construed to have application to collecting and managing geological and (non-commercial) mineral resources (“rock collecting” or “rockhounding”).

On behalf of the members of SCPS, our CFMS- and AFMS affiliate clubs, and other paleontology societies and professionals, we respectfully request your consideration of the comments herein concerning the Department of the Interior’s proposed regulation under PRPA. First, we fully support the conservation objectives afforded by this landmark Act. We also fully understand and support a comprehensive set of standards applied to managing paleontological resources on public lands and a coordinated approach between the different federal agencies that administer them.

We are encouraged that the proposed regulation demonstrates careful review and thoughtful effort invested in clarifying the objectives of the PRPA. We do have several concerns with the proposed regulation, and we feel some clarification or emendation is necessary to administer the regulation consistently and fairly. Our primary areas of concern are addressed in this letter:

  1. Aligning the mission and values concerning fossil collecting between the paleontology community and PRPA.
  2. Semantic clarification of “invertebrate” and “vertebrate” fossils/fossil collecting.
  3. Definition of terms: casual collect-or/ing, common, reasonable amount, and negligible disturbance.
  4. Access to federal lands for casual collecting: permits and prohibitions,
  5. Protective designations.

1.) Aligning the mission and values concerning fossil collecting between the paleontology community and PRPA.

Paleontological resources (“fossils”) have importance as both material patrimony and intellectual patrimony. The intent of PRPA is to balance both values. The intellectual values – educational, social, and recreational – flourish only when fossils can be discovered, collected, and studied. PRPA protects such values through accommodation of casual fossil collecting. The proposed regulation is to implement the PRPA of 2009. One stated purpose of this statute was “To ensure that amateur collecting of rocks, minerals, and invertebrate and plant fossils on Federal lands is not affected by this Act.” During development of the law, the merits and value of amateur paleontology were recognized, and the final law provides that “casual collecting” without a permit is to be allowed on BLM and National Forest lands, except as determined necessary to limit or restrict it within specific areas for the protection of other values and resources. The proposed regulations conflict with the letter and intent of the 2009 Act, where the BLM proposes prohibiting casual collecting within broad categories of land management area without specific justification, or throughout large areas where the prohibition is not justified by a specific need for the entire area.

The draft EA for the proposed regulation states, “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.” The BLM may exercise discretion to close areas to collecting or to restrict collecting on a case-by-case basis. This provision enables overly broad prohibitions or even universal restrictions that may be unnecessary to protect designated resources. Area-specific management plans need to state the area- specific rules and the justification for them, and those management plans are required to be easily accessible for public reference.

The proposed regulation tips the balance between “material” and “intellectual” at the expense of the latter. In general, the proposed regulation appears to regard in situ preservation of fossils as an ideal and collecting as a “damaging” activity, or at least, an activity to be discouraged. However, fossils in situ are not necessarily protected by remaining in place. In a dynamic setting near the earth’s surface, fossils tend not to maintain equilibrium with an environment that is neither continuously neutral nor sufficiently static to remain intact. Erosion, which exposes fossils at the surface, has a natural destructive force that can quickly damage or destroy them if they are not recovered, especially after emplacement at or near the surface. Regarding their intellectual value, little can be learned about most fossils in situ, and accurate identification of invertebrate fossils is often impossible in the field. To protect and preserve both the material and intellectual value of fossils, they need to be found and collected.

The proposed regulation seems to restrict collecting commensurate with mis-use, over-use, or abuse associated with “night diggers” or claim jumpers, and not the behavior of responsible hobbyists. Where has the deleterious impact of responsible amateur collectors been demonstrated to justify the degree of restrictions proposed? The paleontological community is small. Are there data to suggest abuse by members of our community has occurred which warrants such severe constraints? The impact of casual collecting, before implementation of the PRPA, was determined to be minimal, and no action was recommended to curb casual collecting. If there is serious abuse/mis-use, we would like to see the data. We do not think that paleontological resources on federal lands have or will disappear through responsible collecting practices. Commercial collecting or other abuse is not casual collecting, and rules exist to prevent or control such commercial enterprise.

The proposed regulation restricts collecting in a manner that is impractical in the field. Where the proposed regulation under PRPA incorporates impractical or onerous restrictions on casual collecting (section 49.810), it actually conflicts with the 2009 statute. Please refer to the published discussion on development of that law, where casual collecting is a protected activity, except when in specific and limited areas it is found to be inconsistent with other goals or values.

We believe that fossil collecting has educational and social value that inspires young people to become our future scientists and stewards of public lands. It provides opportunity to better understand the processes of Nature’s laboratory through direct experience of its geologic wonders. It is an activity of exploration and discovery that enriches their knowledge about the geology and paleontological resources of the earth.

Fossil collecting is often thought of as a “gateway science” – when introduced to children, it not only enriches their understanding of the natural world and its geology and paleobiology, but it instills the knowledge that will make them better-informed adults who learn to appreciate society’s role in protecting our environment. Fossil collecting has been known to lead enthusiastic children to choose career paths or develop avocational interests in the sciences.

We would like to emphasize that recreational fossil collecting is an activity compatible with the guidelines articulated in the United States Forest Service’s document of June, 2010, “A Framework for Sustainable Recreation.” The AFMS Code of Ethics is consistent with federal guidelines concerning recreational use of federal lands. On CFMS affiliate-sponsored field trips, participants sign a waiver adhering to the AFMS Code of Ethics, which stipulates that collecting activities should “cause no willful damage to collecting material” and participants will “…take home only what …[they] can reasonably use,” “practice conservation and …utilize fully and well the materials…collected and …recycle…surplus for the pleasure and benefit of others,” and “appreciate and protect our heritage of natural resources.” On CFMS-sponsored field trips participants are expected to pack out what they pack in, pick up trash, mind habitat and vulnerable natural features, observe all laws and regulations – in short, we teach and practice responsible stewardship of our public lands.

Finally, we would like to put into perspective the impact the fossil-collecting community has on federal lands. This year, myFOSSIL.org has listed a membership of approximately 72 networked fossil clubs and societies in the United States that are devoted to the casual collecting of paleontological resources. In its “Draft Environmental Assessment for Two Definitions for Casual Collecting of Paleontological Resources on BLM-Administered Lands, Proposed 43 Code of Federal Regulations Part 49 Subpart I,” the BLM has calculated for purposes of analysis an average membership of 100 members per rock-mineral-fossil club in the United States. Based on this calculus, approximately 7,200 members of fossil-collecting communities potentially visit federal lands each year to collect. Certainly, other recreationists who do not self-identify as “paleontologists” may collect fossils as part of their recreational experience (e.g., rockhounds), but it seems clear that the total number of fossil collectors who visit federal lands is small and their potential impact is small contrasted against the estimated 62.4 million recreation-related visits to public lands in 2015.

2.) Semantic clarification of “invertebrate” and “vertebrate” fossils/fossil collecting.

We ask that the terms “invertebrate” and “vertebrate” fossils are never conflated together for the sake of administering guidelines concerning collecting of fossils/paleontological materials as a broad category. These important distinctions help to differentiate characteristics and associated values (e.g., pecuniary, rarity, complexity to excavate) of very different materials that should not be managed according to identical one-size-fits all standards.

3.) Definition of terms: casual collect-or/-ing, common, reasonable amount, and negligible disturbance.

In general, the criteria for casual collecting are reasonable. However, the critical/operative terms used are vague, and their meanings are subjective. We recommend clearly defining the terms and applying them consistently throughout the regulation and from one agency to another. We suggest the emendations or clarifications for specific terms or phrasing discussed below.

Reference 43 CFR, Part 49, Subpart I, §49.810: “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.”

§49.810 (a)(2): “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.”

“Reasonable amount”. SCPS members, like the rest of the amateur community, adhere to the AFMS Code of Ethics and do not take more from a collecting site than they can reasonably use. But the “reasonable” amount of material may vary from one site and one situation to another. In many instances, we agree that the weight maximum of 25 pounds may be appropriate. We acknowledge that there may be sensitive sites where an agency might appropriately set a low weight amount. However, as a general standard, the proposed weight limit of 25 pounds is impractical, due to fossils often being imbedded in heavy matrix that cannot be removed in the field. Unique local conditions at any given site are understood best by the local agency. Therefore, we recommend deferring to the local administrative agency to depart from the low limit of 25 pounds and make “reasonable amount” more reasonable for invertebrate fossil collecting: 100 pounds with specimen in matrix or attached to host rock.

Petrified wood is governed by 43 CFR part 3622, which allows for 25 pounds per day plus one piece of any weight but not to exceed a total of 250 pounds per year. That 43 CFR part 3622 takes precedence over these new regulations (see p. 88175, Federal Register) should be made explicit. How will the differing daily and annual total pounds rules be combined or reconciled if both petrified wood and other fossils are collected by an individual?

“Negligible disturbance”. Replace “negligible disturbance” with “low impact disturbance.” This would comport with BLM’s standard and aligns with BLM’s study (in progress) on Disturbance Caps (est. May 2017, Barstow, CA field office). BLM characterizes amateur rockhounding as a “low impact disturbance” activity contrasted against “high impact disturbance” caused by commercial mining activity. The high and low impact disturbance can be differentiated visually from aerial surveying at different elevations. We recommend applying to invertebrate fossil collecting the same “low impact disturbance” standard used for rockhounding.

§49.810 (a) (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.”

“That have been established”. The phrase “that have been established” is troublesome – established by whom? The regulation should stipulate a standard authority or reference on common species.

“Common”. If “Not all invertebrate or plant paleontological resources are common,” then the regulation should either stipulate the uncommon species that are specifically out of bounds or cite the authority reference where they are listed.

In part III, “Section-by-Section Analysis of the Proposed Rule,” page 88182 of the Federal Register, Vol. 81, No. 235, dated Wednesday, December 7, 2016, the BLM states:

“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.”

This language is problematic, because it is inconsistent with the actual manner in which discovery in the field customarily occurs; amateurs as well as professionals are often unable to make an identification in the field. Sometimes an identification can only be made later, with the aid of references or after the specimen has been cleaned and prepared. (See also below: §49.300 of Subpart D, Prohibited Acts)

“Err on the side of caution”. We believe that amateur collectors should exercise scrupulous judgement and care in the field, but this admonition effectively discourages collecting by hobbyists. It may even inadvertently limit collecting to professional paleontologists.  As a natural result of continuing erosion, fossils previously buried below the earth’s surface are uncovered each year. If amateur collectors should discover an “uncommon” fossil unexpectedly, we think it is neither practical nor advisable to leave the fossil in situ and to instead report it to the proper authorities, and then hope it will be retrieved. Should someone return to retrieve it later, the fossil may be difficult to locate, or if found, it may be damaged from exposure

“…surface collection or the use of non-powered hand tools”. We recommend emending the sentence to: “surface collection or the use of non-powered hand tools for shallow excavating (digging) or removing overburden.”

§49.810(a)(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:

  1. (i)  In no circumstances may the surface disturbance exceed 1 square yard per individual collector
  2. (ii)  For multiple collectors, each square yard of surface disturbance must be separated by at least 10 feet;
  3. (iii)  All areas of surface disturbance must be backfilled with the material that was removed so as torender the disturbance substantially unnoticeable to the casual observer.

“Negligible disturbance”. (See also comment in preceding section.)

We understand the PRPA was modeled after the Archaeological Resources Protection Act of 1979 (ARPA). While it is a useful model, in some respects the occurrence (deposition) or handling of paleontological and archaeological resources are quite different. Therefore, the regulation should modify the standard appropriate for paleontological material. Because the nature of deposition and exposure of resources can be so different, the standards for “negligible disturbance” and confining “surface disturbing” activity to “1 square yard” are impractical.

Certainly, concerning sub-paragraph (i), the area limit of “1 square yard” is impractical. Fossil remains are rarely distributed evenly or contiguously. Often, they are found in one thin stratigraphic layer that may have been uplifted, folded, and otherwise changed over time. As a result, the fossil site can have any size, shape, or configuration. Given the nature of deposition, collecting fossils, therefore, often requires trying different areas (exploratory digging). The proposed regulation needs to accommodate surface collecting over a larger area than “1 square yard.”

The draft EA for the proposed regulations correctly states that the “PRPA requires the bureaus to allow casual collection and to define negligible disturbance.” It also discusses a range of spatial areas greater than zero up to five acres. Obviously, one square yard is much closer to zero than to five acres (using rules for geological surveys as a reference is not demonstrably relevant). The draft EA concludes that “Casual collecting activities are not anticipated to cause adverse impact to paleontological or other natural or cultural resources.” Therefore, again, it seems unnecessary for the spatial area collectors may examine to hew toward the low-end value (zero). In fact, instead of a quantitative value, we think the “low impact disturbance” standard BLM applies to rockhounding and limitation applied to collecting using simple hand tools are adequate standards of constraint.

Sub-paragraph (ii) requires that multiple collectors should be separated by a distance of least ten feet. For the aforementioned reasons, this is not possible. A fossiliferous area may be small, and it may have only one small accessible surface exposure. For most of our SPCA’s collecting trips, we have between 3 and 12 participants. If they were required to spread out according to this proposed rule, many of our participants might be out of range of the fossil site. This situation varies from site to site, from one stratigraphic formation to another, and a one-size-fits-all rule cannot adequately address each situation.

Sub-paragraph (iii) requires that all surface disturbance must be backfilled with the material that was removed so as to render the disturbance unnoticeable to the casual observer. The AFMS Code of Ethics requires that members backfill holes because those holes may cause injury to wildlife. Whether to protect wildlife or to leave the environment looking untouched, backfilling is certainly a reasonable requirement.

Concerning §49.810(d), any additional “limitations” need to be communicated to the public and to be consistent as interpreted and applied by BLM personnel. They should be clearly written and accessible for public reference, with an explanation of their justification.

4.) Access to federal lands for casual collecting: permits and prohibitions.

Reference 43CFR, Part 49, Subpart I, §49.800: “Is casual collecting allowed on lands administered by NPS or FWS? Casual collecting of paleontological resources is not allowed on lands administered by NPS or FWS. On those lands, collecting must be conducted in accordance with a permit as described in subpart B of this part.”

We recognize that the proposed regulation must conform to the 2009 PRPA statute, but we would like to state that we think there are wildlife refuges where casual collecting is compatible with the goals and purpose of the refuge. One example is the Desert National Wildlife Refuge, administered by the U.S. Fish and Wildlife Service (FWS) and located north of Las Vegas, Nevada. The public is allowed both on- and off-trail throughout most of this vast refuge, and incidental surface collecting of rocks or fossils has not been shown to be negatively impactful to bighorn sheep, which the refuge was established to protect. However, currently, collecting is not allowed.

In addition, the National Park Service (NPS) administers large tracts as National Recreation Areas and is proposing to add substantial acreage around urban areas, such as the “Rim of the Valley” proposal for Los Angeles and Ventura Counties. We believe that casual collecting of rocks and fossils is a recreational activity compatible with other activities allowed in National Recreation Areas. There is a need for publically-accessible areas that enable educational nature study activities near urban populations.

These two aforementioned areas, one administered by FWS and one by NPS, are cited as examples of the need for critical consideration of the policy that currently does not allow any casual collecting on lands under the administration of these two federal bureaus.

§49.300 of Subpart D, Prohibited Acts: “A person may not: (a) Excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any paleontological resource located on federal land unless this activity is conducted in accordance with the Act and this part.”

Authorization could be given in the form of a permit or allowed as casual collecting consistent with subpart I of this part. In Subpart E, Criminal Penalties, and Subpart F, Civil Penalties, fines and potential imprisonment are listed as the penalties for these prohibited acts. Whether identification applies to a common invertebrate fossil, a common plant fossil, or a significant invertebrate or plant fossil, dire penalties would discourage casual collecting, when such collecting should be encouraged. The paleontological community has clearly benefited from collecting done by amateurs. Such benefits can continue to redound to the paleontological community only if amateur collecting is supported, not penalized.

As discussed previously, we are concerned that the proposed regulation under PRPA may inadvertently discourage or even prohibit collecting by amateurs / casual collectors. In some instances, amateur collecting may be allowable only with sponsorship of a professional paleontologist. What sensible professional would accept personal responsibility (liability) for a casual collector?

5.) Protective designations.

Land use amendment plans and travel management plans have proliferated in recent years (e.g. DRECP, WMRNP in California). New protective designations have been created (e.g., under DRECP). The development and deployment of Planning 2.0 initiative (in progress) will necessitate review and possible revision of other existing plans to bring them into compliance with Planning 2.0 and consistent with FLPMA or PRPA, as applicable. We understand that WMRNP, for example, will be re-visited to conform with Planning 2.0.

Because the proposed regulation to PRPA will have wide application across the agencies of the federal system, and because there is now so much confusion among the public about what is or is not permissible – and where – we respectfully request preparation of a document listing all the protective designations and accommodation of invertebrate fossil collecting in each one of them.

For the record – contributions of amateur collectors

To demonstrate the invaluable contribution of amateur collectors to the field of paleontology, please consider some important case studies presented below. They attest to the historically productive nature of the relationship between amateur and professional. They attest to the invaluable role amateurs have had in preserving material patrimony and extending intellectual patrimony of paleontological resources.

One of the stated purposes of most paleontological societies, including SCPS, is to encourage responsible stewardship of earth’s paleontological resources and to promote scientific research, communication, and public education. The professional paleontological community is small (as mentioned previously). It has a long history of cooperation with and reliance upon amateur paleontologists to be its “boots on the ground.”

Over the decades, countless specimens, common and rare alike, have been found by amateurs. For example, the trilobite site in the Marble Mountains fossil bed (located in the Mojave Trails National Monument) was discovered by amateur rockhounds and brought to the attention of paleontologists.

New species have been identified and new localities for known species have been found. What to do in such circumstances? Amateurs frequently share their finds with museums or other repositories. Amateurs publish papers in newsletters, club bulletins, or journals, and they provide specimens for research and educational purposes to the professional community. For example, in SCPS, four former members donated their extensive collections to the Invertebrate Paleontology Research and Collections Department (IP) of NHM. These very knowledgeable amateurs include Harold Meals, Yvonne Albi, June Maxwell, and Father Floyd A. Jenkins. They are among many contributors to the substantial and important invertebrate collection at the Natural History Museum. Harold Meal’s collection consisted of many important California Pliocene and Pleistocene fossils, along with the accompanying geological and contextual stratigraphic data, making this collection an important research resource. Yvonne Albi’s collection, featuring echinoderms in particular, has been a useful addition to the comparative taxonomic collection. Another current SCPS member, Wayne Bonner, recently offered much of his collection to IP-NHM. His specimens will be of assistance in an ongoing effort to understand diversity of specimens in a collecting site.

Martha Burton Woodhead Williamson, an early amateur fossil enthusiast, collected shells extensively in the late 1800s. She donated this collection to the Los Angeles Museum of Art, History, and Science in 1912 (today, Natural History Museum). Her collection provided the core resource around which was built the now very significant Invertebrate Paleontology collection. Her collection was important mainly because she collected from localities that are no longer accessible, or have been effaced by urban development. Among other localities, she collected shells from Dead Man’s Island in the Port of Los Angeles, an island that was destroyed to build the current port. Visitors still come to NHM-IP Research and Collections in Los Angeles to see and study her collections. The specimens in her collection would be impossible to collect today, so they fill an important gap in the paleontological record of our region. They effectively preserve the legacy of material patrimony that would not be preserved had they been left in situ or gone undiscovered.

Members of the more than 70 fossil clubs and societies in the United States share in common the same values and interests in paleontology; although, different groups may have a different focus. They enjoy learning about paleontology, which includes the excitement of discovery through collecting in the field. The SCPS is committed to education and collaboration with the county museums in the Los Angeles area. Another group, the Anza-Borrego Desert Paleontology Society, is composed of volunteers who assist the Anza-Borrego Desert State Park staff in finding, preserving, and protecting park fossils. They are trained volunteers with a specific focus. Another group on the west coast, the North America Research Group (NARG), is well-known for the many significant specimens that its members have found and sometimes, prepared. The range of their finds includes a possible ichthyosaur to a late Miocene whale skull rostrum to a plesiosaur. All these specimens have been placed in museums. The dedicated volunteers of NARG do not limit themselves to “common” invertebrate finds. However, they always notify appropriate authorities whenever a discovery is made and then proceed by permission.

Not only do amateurs find and share their discoveries of new species and new localities, but by the number of specimens they provide, they allow a more accurate statistical analysis of species distribution. We cannot overstate how important it is not to incorporate language into the proposed regulation under the PRPA that marginalizes serious amateur or casual fossil collectors.

We are grateful for the thoughtful drafting of the proposed regulation under the PRPA. We appreciate having the opportunity to provide comments on the Proposed Rule to amend Title 43 of the CFR by adding a new part 49, and we look forward to seeing the interests and values of the community of amateur fossil collectors reflected in the final version of Part 49. We look forward to being given the opportunity to review the next draft and provide input.

Sincerely,

Karol McQueary, President
Southern California Paleontological Society 127 members
1411 Goodman Ave.
Redondo Beach, CA 90278

Death of Discovery

Death of Discovery

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

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

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

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

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

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

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

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

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

Highlights of the law:

Definitions:

CASUAL COLLECTING- The term `casual collecting’ means the collecting of a reasonable amount of common invertebrate and plant paleontological resources for non-commercial personal use, either by surface collection or the use of non-powered hand tools resulting in only negligible disturbance to the Earth’s surface and other resources. As used in this paragraph, the terms `reasonable amount’, `common invertebrate and plant paleontological resources’ and `negligible disturbance’ shall be determined by the Secretary.

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

Management:

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

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

Collection of Paleontological Resources:

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

Prohibited Acts; Criminal Penalties:

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

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

Rewards and Forfeiture:

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

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

Confidentiality:

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

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

Savings Provisions:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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