Tuesday, May 12, 2009

Just When I Think I Know Something About Something, I Enter the Rabbit Hole

Just when I think I know something about something, I find that perhaps I don’t. Well, at least, not well enough to have ventured out in writing as though I had the topic nailed. What follows reflects the stages I went through as I dropped down the rabbit hole of collecting fossils on federal land and tried to make sense of what I found.

In her blog (Dinochick Blogs), ReBecca Foster is continuing her excellent series of postings on paleontological field work. I look forward to these every Friday – a chance to watch and learn from professional paleontologists in the field. It’s great stuff.

Her latest post brought me up short, though. She described a Bureau of Land Management site in the House Range of Utah where she and a colleague were in pursuit of trilobites. They came upon row upon row of slabs of rock, stacked and banded pallet-style – seemingly waiting for a truck to come and haul them away. The slabs were replete with trilobites. ReBecca has some pictures of these slabs. Perhaps this effort to haul away the material had been interrupted because someone had been found violating a BLM permit requirement. Or, perhaps, the truck just hadn’t arrived yet.

ReBecca provided a BLM link that describes the policies governing fossil collecting on BLM land. Here’s what it has to say (the italics are mine, the all caps of “noncommercial” are by the BLM as was a misspelling of “amount” which I corrected):

You may collect common invertebrate and plant fossils for NONCOMMERCIAL purposes only. A reasonable amount is what you may keep for a personal hobby collection or display in your home. Collecting common invertebrate or plant fossils for landscaping (even if it's just around your house) is not a hobby activity and must be done as a mineral materials sale. (43CFR3602)
If you wish to collect common invertebrate or plant fossils for landscaping, sale, or commercial purposes you must apply to the BLM for a mineral materials sale. (43CFR3602)

Wait, wait, collecting fossils for commercial purposes???? No, no, that can’t be right.

That’s not what I thought I knew – isn’t the taking of fossils from federal land for commercial purposes absolutely prohibited?

Certainly, the Interior’s 2000 report, Fossils on Federal and Indian Lands, makes that clear. Table 1 in the report outlines the policies that applied at the time to Interior land – commercial collecting is not allowed. In the section with responses to public comments, the report succinctly states:

The possibility of commercial collection of fossil specimens from public lands was reviewed, but ultimately was determined not to be a viable option because of the likely loss of scientific and educational information and public enjoyment. Few comments supported commercial collection on federal lands. Fossils for commercial use may be collected from nonfederal lands.

Then there’s the Paleontological Resources Preservation legislation, recently enacted as part of the Omnibus Public Land Management Act of 2009 (P.L. 111-11). It creates a uniform statutory framework that governs fossil collecting on federal land. There is absolutely nothing in that legislation suggesting that commercial collecting of fossils on federal land was, is, or will be allowed.

To be perfectly clear, the PRP legislation applies to some specific federal land: (1) land controlled or administered by Secretary of the Interior, except Indian land, and (2) the National Forest System land controlled or administered by the Secretary of Agriculture. The “casual collecting” of common invertebrate and plant fossils, that is collecting of such fossils by individuals for personal use, is allowed on a specific subset of these lands – those lands under the jurisdiction of the Bureau of Land Management, Bureau of Reclamation, and the National Forest Service. The legislation does not allow any commercial collecting under any of the land it applies to, including land under the jurisdiction of the BLM. All other collecting (including any collecting of vertebrate fossils) requires a permit. Fossils collected under a permit remain the property of the United States. Absolutely nothing commercial about that.

The BLM has posted an “instruction memorandum” on its website, describing the impact of the new legislation on its policies regarding casual collecting. It states that the new law doesn’t change its past practices regarding collecting by amateurs. I would hope not, given that the authority for casual collecting in the new law was based specifically on the BLM policy. The memorandum 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.

Hmm, that last sentence certainly seems to keep closed any possible loophole for commercial collecting of common invertebrate and plant fossils. So, what gives?

Perhaps it’s a delightful bit of bureaucratic sleight of hand. Does the key to all of this lie in a transformation of common invertebrate and plant fossils into “mineral materials” which, presumably, can be dug out, hauled away, and sold?

The BLM site ReBecca linked to does say one needs to have a mineral materials sales permit in order to take fossils for commercial use. It also cites as its authority Part 3602 of Title 43 of the Code of Federal Regulations. This entire CFR part – 3600 – governs mineral materials disposal on BLM land. Interestingly, 43 CFR 3601.5 provides the definitions for this part, and includes the following:

Mineral materials means, but is not limited to, petrified wood and common varieties of sand, stone, gravel, pumice, pumicite, cinders, and clay.

So, petrified wood is covered by mineral materials sales (ouch), but are other fossils? The definition is open-ended (“is not limited to”). Other fossils? Possibly.

Perhaps the actual key is the use to which the mineral materials are put, that is the purpose of the purchase and sale. The BLM’s mineral materials program is designed to sell minerals from BLM land for use in such activities as highway construction, building construction, and landscaping. So, you can buy the mineral materials from this federal land and all of the fossils contained therein, as long as you don’t do this to collect and sell the fossils as fossils?

And, then, of course, the original BLM site that started this journey might simply have been mistaken or poorly crafted. (Occam’s Razor at work.)

But, I think we’re really down the rabbit hole.
“Curiouser and curiouser!” cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English).


  1. First off, thanks for the great plug! I am glad you enjoy the series and it is nice to know someone reads them :)

    The area where the pallets were was "dozed closed" - all the roads into the area had been plowed shut with large piles of dirt. The area up to the big quarry pit had been blocked off by large rocks. Trash and rusty nails everywhere.

    We also did see more inarticulate brachiopods in the slabs on the pallets than trilobites, but there were trilobites for sure!

    I will print your questions off and ask around at the 8CFR next week. There are some fuzzy areas I am confused about also and I am by no means an expert. I typically deal with vertebrates, which are never considered common fossils, and area always protected, so I get confused when it comes to plants/invertebrates and the term "common" and collection practices associated with them.

    Keep up the great work here! I will let you know what I find out. - ReBecca

  2. Thanks for clarifying what you found at the BLM site. I'll be interested in what you learn at the 8CFR (8th Conference on Fossil Resources -- not to be confused with the Code of Federal Regulations).

  3. Paleontological resources are not considered "mineral" under the General Mining Law, the Materials Act or the leasing laws. However, there are mineral resources where fossils may be intrinsic to or part of the material itself. One very obvious example is limestone, e.g., oolitic or coquina. Limestone is legally considered a mineral material, and salable under the Materials Act of 1947 as amended in 1955 and 1962. Another good example is coal; it is a leasable mineral. But, it may contain fossil plants or in one unique case, casts of dinosaur footprints. In these cases, the mineral's economic value supersedes its classification as a "paleontological resource." However, where there are discrete paleontological resources, such as vertebrate fossils, that are recoverable prior to impacts by mining or any other federal surface disturbing action, these fossils are protected under the new PRP law, as well as under NEPA and for BLM, FLPMA. Then, there is the special case of petrified wood. Prior to 1962, it was a locatable mineral; i.e., you could stake a mining claim for petrified wood. Because of concerns for protection of the resource and availability for amateur collectors, DOI asked Congress to declare it a salable mineral while allowing collection by hobbyists in "limited amounts." So, in the case where fossils are an intrinsic part of the mineral, technically what is being commercially sold and produced is NOT a paleontological resource, but an economic mineral resource. Hopefully, that will clear up some of the confusion. But, that is not to say it is clearly black and white. There are still some grey areas out there that need to be decided upon on a case-by-case basis. I will be at the 8th Conference on Fossil Resources and would be glad to talk to Rebecca about this.

    Lucy Kuizon, Bureau of Land Management

  4. Thanks Lucy for the clarification. So, it's a matter of what trumps what.


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