Friday, July 31, 2015

“Casual Collecting” ~ The U.S. Forest Service Hits Amateur Paleontologists with a Dictionary


When is “casual collecting” of fossils not casual collecting?  For that matter, when is a “sandwich” not a sandwich?  The answer is:  when a dictionary is used as a dispositive and authoritative source.

I’ve long thought it poor form to make a major point in an essay by using a dictionary’s definition of a word.  It’s somewhat akin to making a conclusive statement by quoting Wikipedia.  In other words, it shows a lack of imagination and, perhaps, research skills, as well as, ignorance or disregard of how the quoted authority is actually derived.  Yes, I’ve been guilty of incorporating a dictionary definition or two in the central part of a blog posting, but, that said, I do recognize that definitions of words differ from one dictionary to another, and that definitions change over time because dictionaries, particularly modern ones, are intended to reflect usage and common understandings.  They do not seek to present a definitive or authoritative guide to how a word should be used.

Not much is really lost when a blog post engages in this practice, but in other venues a great deal more may be at stake.  Take, for example, the recently published final regulations from the Department of Agriculture’s Forest Service (Federal Register, April 17, 2015) for its administration of the Paleontological Resources Preservation Act (Title VI, Subtitle D, Public Law 111-11).  These regulations have sent spasms of concern through the ranks of amateur paleontologists and fossil hobbyists.  And much, if not all, of that angst arises not from the regulations themselves, but from language in the accompanying (I think that’s the right word) “Section-by-Section Explanation of the Final Rule.”  In that Section-by-Section, the Forest Service turns to a dictionary to define the word “casual.”  Surely a misguided step.

So, what’s this all about?

PRPA is necessary and sound legislation enacted to protect paleontological resources on Federal land, replacing the previous patchwork of rules and policies with an overarching legal framework defining what can and cannot be done with such resources, and providing serious penalties for deliberate violations.  I’ve posted on this several times, most recently on June 7, 2013.  PRPA absolutely forbids commercial collecting of fossils on Federal land, while allowing “casual collecting” without a permit under specific conditions.  The law defines “casual collecting” in Section 6301(1):
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.  [Note:  Reference to the “Secretary” should be read as to either the Secretary of the Interior or the Secretary of Agriculture, depending upon the federal lands involved.]
Under Section 6304(2) of the law, casual collecting without a permit is allowed on land of the Bureau of Land Management, Bureau of Reclamation, and the Forest Service “where such collection is consistent with the laws governing the managements of those Federal land and this subtitle.”

All well and good.  I’ve argued previously that PRPA actually is a boon to amateur paleontologists because it authorizes in law the “casual collecting” of  “common invertebrate and plant” fossils and also applies this to a somewhat broader sweep of federal lands than had been true under the previous policies and rules.  The key, for me, is my belief that, under this statute, what amateur paleontologists and hobbyists do is, in fact, “casual collecting.”  It’s important for this discussion to know  that I consider an “amateur paleontologist” to be someone who takes the avocational pursuit of fossils seriously, following a deliberate approach to collecting modeled, as best he or she can, on the practices of professional paleontologists.

During the many years of its legislative consideration, PRPA was the source of much handwringing and hyperbole within the amateur paleontology community sparked by concern that the law targeted amateur fossil collecting on Federal land for elimination, threatening violators with draconian penalties.  That concern about the law was, I thought and still think, unwarranted

But, now, I’m not so sure about the effect of the regulation writing process of the Forest Service.  The final regulations define “casual collecting” just as they were defined in the proposed regulations (Federal Register, May 23, 2013) and as they are in the law.  No problem there.

The Forest Service’s decision to add language defining “casual” to the text accompanying the regulations has created a problem for the amateur paleontology community.  Reflective of that concern is a piece that appeared in the 2nd issue in 2015 of the Janus, the newsletter of the North Carolina Fossil Club.  It’s titled Federal Forestlands Fossil Collection Ruling and Why it Matters and the author asserts that the Forest Service rule
is designed to end amateur fossil collecting (of any kind) on all Federal Forest Lands.
The writer goes on to claim that the “ruling is SPECIFICALLY written to address fossil INVERTEBRATE collection.  The 2009 Ruling already banned Vertebrate collecting” (capitalization in the original).

The message is clear and the tone just a bit shy of apocalyptic.  The perfectionist in me cringes at the erroneous references to a “2009 Ruling” (that’s the year the underlying legislation was signed into law) and its prohibition on vertebrate collecting (that ban was nothing new under prior Federal policies and rules, its codification in law is what was new).  But, getting beyond that and the various other errors in the article regarding legislative process and rule making, I think there is some fire beneath all of the smoke being raised.

In the Section-by-Section Explanation of the Final Rule, the Forest Service appears to be engaged in a process of trying to take away what the law provides for amateur paleontologists.  After reiterating the elements that the law stipulates constitute “casual collecting,” the Section-by-Section Explanation descends into a bit of dictionary-inspired madness:
The Department [of Agriculture] considers that in establishing the term “casual collection” [sic – the term actually established in law is “casual collecting”] rather than “amateur 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” (“casual” Merriam-Webster.com.  2014.  (4 March 2014)).  (Federal Register, April 17, 2015, p. 21594.)
The Section-by-Section goes on to state
Consequently, the Department considers that casual collecting would generally be happenstance without intentional planning or preparation.  Development of criteria for reasonable amount and negligible disturbance reflects, in part, the view of casual collecting as an activity that generally occurs by chance without planning or preparation.  (p. 21594) 
Wait, wait.  In light of my idea of what an amateur paleontologist does in pursuit of fossils, we may be screwed.  Often, we plan, go into the field prepared, and are deliberate in our actions.  But, and it’s a sizeable but, none of the language in this Section-by-Section Explanation appeared in the proposed regulations in 2013 and their accompanying text.  So, it, essentially, appears out of nowhere and was not subject to any public comment.  Further, and very significantly, the law already defines what constitutes “casual collecting” and the legal elements are (1) collecting “a reasonable amount of common invertebrate and plant” fossils, (2) collecting for “non-commercial personal use,” and (3) collecting from the surface of the land or by means of “non-powered hand tools” without creating more than a “negligible disturbance to the Earth’s surface and other resources.”  That’s it, period.

Yes, the law specifically allows the Secretaries to define certain phrases in the definition, but not the term “casual collecting” or the word “casual.”

Admittedly, I don’t know what legal force this Section-by-Section Explanation really has when it comes to enforcing the Forest Service’s regulations, either by the agency or in a court of law.  Perhaps little, perhaps a great deal.  Regardless, it’s highly troubling and it’s wrong.

Assuming that this language reflects how the Forest Service will actually approach amateur paleontologists collecting on its land, then, as far as I can see, the Service is going out of its way to limit the collecting that can take place in such a way that violates the spirit, intention, and plain language of the law.  Turning to a dictionary’s definition of what “casual” means is nonsensical and fraught with problems.  Different dictionaries may define “casual” in different ways and a dictionary may provide several senses for a word, as the Merriam-Webster Dictionary website, cited by the Forest Service, does for “casual.”  It offers three different senses of the word “casual,” each of them conveying something slightly different.  The Forest Service’s Section-by-Section Explanation picks from all of those senses in its selection of “phrases” that it asserts define “casual.”  Yes, one of the Merriam-Webster senses focuses on chance and the unexpected, but another, separate sense is based on the idea that “casual” can be used to describe something that does not occur with regularity, that is occasional.

My Webster’s Seventh New Collegiate Dictionary (1963), which is one of two I have immediately at hand (it’s a falling-apart, hardcover book that just happens to be around my summer cottage) has this to say about how to use the different senses of a word:
The best sense is the one that most aptly fits the context of an actual genuine utterance.  (p. 12a)
Ah, context.  That’s missing from what the Forest Service did in its effort to define “casual.”  At the outset, there is the context of the legal definition itself which is dispositive, as far as I can see.  It’s easy to identify what would not constitute casual collecting – the collection of an unreasonable amount of fossils, the collection of vertebrate fossils or fossils from rare invertebrates or plants, the collection of fossils for commercial purposes, or the collection of fossils in such a way that the land is disrupted.  The law intends to preclude each of those actions.

Perhaps even more damning for the Forest Service is the internal inconsistency that its definition of “casual” has with the language of the law itself.  The Forest Service holds that the drafters of the law intended “casual” to mean, among other things, “happening by chance; not planned or expected” or “done without much thought, effort, or concern.”  If that’s true, then, why would the law permit “casual” collectors to use “non-powered hand tools”?  The Forest Service regulations define such tools as “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.”  How would such allowable tools come to be brought onto Forest Service land by collectors in the first place, if not deliberately, through planning, and with forethought?

Did the Forest Service do a thorough search through the legislative history to determine whether “casual collecting” was intended to preclude amateur collecting?  The appropriate legislative history should be seen as really stretching back through several Congresses because that’s the time span in which the legislation was considered.  I went back through just the 111th, 110th, and 109th Congresses to see what might turn up.

What doesn’t turn up is any explicit statement that “casual collecting” was not intended to describe what most amateurs and hobbyists do.  Rather, in some instances, it’s fairly clear that the phrase is broadly construed by the Members who sponsored the bills and by officials in the Executive Branch.  For instance, in the 109th Congress, when Senator Akaka introduced S. 263, the Paleontological Resources Preservation Act which had a definition of “casual collecting” that mirrors what was ultimately enacted in 2009, he stated:
The bill acknowledges the value of amateur collecting and provides an exception for casual collection of invertebrate fossils, but protects vertebrate fossils found on Federal lands under a system of permits.  (Congressional Record, February 2, 2005, p. S891.)
Perhaps Senator Akaka intended to distinguish “amateur collecting” from “casual collection,” but I don’t think so, I believe he was equating what amateurs do with casual collecting.

In the next Congress, the Senate Committee on Energy and Natural Resources approved S. 320, the Paleontological Resources Preservation Act and reported it with language identical to that in P.L. 111-11 defining “casual collecting.”  The Senate Committee Report 110-18, to accompany S. 320, included, among the Executive Communications for the legislation, a statement by Christopher Kearney, Deputy Assistant Secretary for Policy, Management and Budget of the Department of the Interior.  (This statement was actually presented a couple of Congresses earlier in testimony on S. 546 that included the same language regarding “casual collecting.”)  Kearney had this to say:
One exception to the permitting requirements under S. 546 is for casual collection of certain paleontological resources for personal, scientific, educational and recreational uses.  This important provision would authorize the Secretary to allow the public to casually collect common invertebrate and plant fossils without a permit on certain federal lands.  In other words, under this bill, visitors to BLM [Bureau of Land Management] lands who enjoy paleontology as a hobby could continue to collect and keep for their personal use a wide variety of plant and common invertebrate fossils.  The casual collection of such fossils can be an important component of the public’s enjoyment of some federal lands and is generally consistent with scientific and educational goals.  (p. 6)
The BLM has always been supportive of fossil collecting by amateurs, so it’s not surprising that Kearney’s statement reads as it does.  Significantly, he finds that the legislation permits “casual collection” by those who “enjoy paleontology as a hobby.”  Where’s the notion that “casual” means happening by chance or unexpectedly?  That simply wasn’t an aspect of the understanding of what “casual” meant to this governmental official testifying on the legislation.

Finally, with regard to the Bureau of Land Management, which has not yet issued even its proposed regulations for PRPA, I take some solace in the concluding comments in the North Carolina Fossil Club piece.  The author reports on a conversation she had with “the head paleontologist of the Bureau of Land Management” who acknowledged that the Forest Service language was “unfortunate.”  The author of the piece asserts that “the BLM folks seem to be more open to the Amateur/Avocational community and they intend for their wording to be different.”

I would hope so.  The language of the law is straightforward; its definition of “casual collecting” requires no ad hoc definition of the word “casual.”  How does the Forest Service define “absurd”?

The case of the “sandwich” definition is a wonderful example of why what the Forest Service has done in relying on a dictionary to determine legislative intent is absurd.  There’s a fascinating literature on the use of dictionary definitions in court opinions, primarily at the level of the U.S. Supreme Court.

[Note:  If you came to this post to read about PRPA, you may want to stop here.]

Lawyer and reporter Adam Liptak, writing in the New York Times, asserts, “In the last two decades, the use of dictionaries at the Supreme Court has been booming.”  (Justices Turning More Frequently to Dictionary, and Not Just for Big Words, June 13, 2011.)  Citing a Marquette Law Review article, Liptak notes that in the first decade of the 21st century, Supreme Court justices turned to dictionaries in 225 opinions, defining 295 words.  Fifty years earlier, in the decade of the 1960s, dictionaries figured in just 16 opinions, defining 23 words.

Much of the recent blame for this trend can be laid at the feet of the “textualists” on the Court, Antonin Scalia, among them.  Law professor Ellen P. Aprill describes “textualism” as giving “particular attention to the statutory language” involved in a case.  (The Law of the Word:  Dictionary Shopping in the Supreme Court, Legal Studies Paper No. 2006-12, Loyola Law School, 1998, p. 278)  Instead of turning to the legislative history of a statute, textualists often employ a different tool to parse the meaning of words used in statutes:  the dictionary definition.  Aprill provides a detailed examination of why dictionary definitions are often decidedly unreliable and inappropriate in a legal context, concluding:
Their purpose of giving readers and speakers approximate meanings of words so that they begin to understand the meaning of the word in context makes dictionaries ill-suited for determining the meaning of a particular word in a particular statute.  (p. 334)
One of the funniest and most damning instances of using a dictionary definition in a case centers on a decision rendered in 2006 by Judge Jeffrey A. Locke of the Massachusetts Superior Court in the case White City v. PR Restaurants.  The case hinged on whether White City Shopping Center had violated the “sandwich” exclusivity clause in its lease with PR Restaurants for the operation of a Panera Bread Restaurant in the shopping center.  That clause stipulated that White City couldn’t enter into a lease with any other entity with a significant portion of its annual sales (over 10 percent) coming from the sale of sandwiches.  The crux of the legal debate was whether the “tacos, burritos, and quesadillas” that a Qdoba Restaurant would be selling under a lease with White City should be considered “sandwiches.”  Since the exclusivity clause did not define “sandwich,” Judge Locke turned to the New Webster Third International Dictionary which defined a "sandwich" as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.”  The word “sandwich,” determined Judge Locke, did not include burritos, tacos, or quesadillas because those foods involved the use of “a single tortilla and stuffed with a choice filling of meat, rice, and beans.”  Though, as I read it, the heart of his decision rested on his interpretation of this dictionary definition, Judge Locke also noted that PR Restaurants could have defined sandwiches in the exclusivity clause and chose not to, even though at the time it was negotiating its lease, it was aware that nearby restaurants sold burritos, tacos, and quesadillas.

The White City decision is saluted by Justice Antonin Scalia and Bryan Garner in their book titled Reading Law:  The Interpretation of Legal Texts (2012).  Richard A. Posner, Judge on the U.S. Court of Appeals for the Seventh Circuit, in a scathing review of the book for the New Republic titled The Incoherence of Antonin Scalia (August 24, 2012), reserves some choice words for Scalia and Garner’s treatment of White City.  They posit that the entire case was decided on the basis of the dictionary definition.  Posner disagrees, noting, as I did above, that Locke put the definition in the context of the drafting of the exclusivity clause.

But here’s where the fun really mounts and a critical point gets made about reliance on dictionary definitions.  Posner posits, “[T]he court got the definition wrong.”  He observes, 
A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich).  The slices of bread do not have to be thin, and the layer between them does not have to be thin either.  The slices do not have to be slices of bread:  a hamburger is regarded as a sandwich, and also a hot dog – and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like.  Dictionaries are mazes in which judges are soon lost.  A dictionary-centered textualism is hopeless.  (Emphasis added.)
Amen to that.  Sadly, the Forest Service is also lost in a dictionary maze.
 
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