Forest Service's Proposed Rules for the Paleontological Resources Preservation Legislation ~ Reviving Faded Memories

This post is about things forgotten, remembered, and made easy.

On May 23, 2013, the Forest Service, part of the U.S. Department of Agriculture, issued proposed regulations to administer the Paleontological Resources Preservation (PRP) legislation of 2009 across the land it administers.  Public comments in writing will be accepted until July 22, 2013.  Last things first - the public commenting is what's been made easy.  I've never felt strongly enough before about proposed regulations to explore how to submit comments, so it was news to me how simple it is.  It can be done online.  Of course, this probably drives the number of comments up and the quality down.  (We continue to await proposed rules from the Department of the Interior.)

Four years is a long time to wait for these proposed rules, particularly with my faulty memory.  I do recall, though, that back then I was caught up in the intense debate that moved through the ranks of amateur and commercial fossil collectors about the merits of the PRP legislation, which was enacted into law as Subtitle D of Title VI of the Omnibus Public Land Management Act of 2009 (P.L. 111-11).  (The text of the public law is available in PDF at this site.)  I was (and am) squarely in the camp supporting the legislation.  But, frankly, I'd forgotten much of the angst that surrounded passage of the legislation, and certainly many details had long since slipped my memory.

I do remember my sense that much of the pain and anguish in the amateur paleontology ranks over passage of the PRP legislation was engineered by commercial fossil collecting interests, intent on enlisting amateurs to their cause by suggesting that amateur collecting would fall victim to the legislation, which was simply not true.  Commercial collectors may have opposed the legislation because it was a lost opportunity - it does not open federal lands to commercial collecting in any way.  Indeed, not only does it reiterate in clear terms the prohibition against commercial fossil collecting on federal land from prior law, it also imposes serious penalties on those found to have engaged in illegal collecting.  As for the amateur collectors, the provisions signed into law actually expand the ability of amateurs to engage in what the law calls "casual collecting" (i.e., not for profit or for research) which applies to "common invertebrate and plant paleontological resources."  Prior to its enactment, such casual collecting was permitted only on land under the jurisdiction on the Bureau of Land Management (BLM).  That meant that, technically, collecting without a permit was unlawful on any other Federal land.  Instead, the new legislation allows casual collecting on land administered by the Bureau of Reclamation and the Forest Service, as well as the BLM.  (Restricting casual collecting to common invertebrate and plant fossils simply continues prior law.)  I discussed much of this in a post in December 2008 when the 110th Congress had closed without passing the legislation.

I read the proposed regulations from the Forest Service with interest, but certainly not with the intensity that I would have back then.  For the most part, I found the proposed rules reasonable and tied to the underlying legislation (which is often repeated verbatim).  Still, two areas are of concern to me.  The first is, in my opinion, something critical.  The second reflects how my paleontological interests have changed in the intervening years; this second issue would probably not have registered with me in 2009.  There may be other provisions I should be focused on but, as I say, it's been awhile since I really thought about the new (well, not so new) law.

First, I am struck by the fact that these proposed regulations place the onus squarely on the casual collector for knowing what can and cannot be done under the law.  This provision finds no counterpart in the underlying statute.  In its language governing casual collecting on National Forest System lands, these proposed rules state:

Section 291.11(f) - It is the responsibility of the collecting public to ensure that they are casually collecting in an area that is open to casual collection, and that the materials they collect art subject to casual collection.

The Background section accompanying these proposed regulations in the Federal Register (May 23, 2013, p. 30814) notes:

Information regarding area closures would generally be available from the local district office.

Wait!  Placing the burden for knowing on the amateur collector without any corresponding responsibility for the administering agency doesn't make much sense to me.  Shouldn't there be a requirement or, at least, an acknowledgement, that the Forest Service will take proactive steps to make it widely known what can and cannot be done with regard to casual collecting?  Doesn't the agency have an affirmative responsibility to disseminate information on areas closed to casual collecting?  Even if this is construed as not an appropriate part of these regulations (I would argue it is), shouldn't the Background section of these proposed regs at least make clear that extensive information dissemination will take place?  Does a notice in the local district office really suffice?

This lack of attention to the responsibilities of the administering agency in getting the message out doesn't seem to be limited just to casual collecting.  I don't see anything addressing this issue of information dissemination elsewhere in these proposed regulations.  I think this is an essential aspect of the administration of this legislation, particularly when the criminal penalties (Section 291.34) hinge on an individual having "knowingly" committed a prohibited act, and some of the civil penalties apply to individuals who "knew or should have known" that the paleontological resources in question were removed illegally from National Forest land (Section 291.27(a)).  If information about the provisions of the law is fairly ubiquitous, it might be that much easier to prove that someone knew that what he or she was doing was against the law.

The second element of these proposed regulations that stood out for me was its determination that, as far as the Forest Service would be concerned, "paleontological resources" covered by the proposed regulations would not include microfossils (Section 291.9(d)(3)).  This is of interest to me given my recent focus on microfossils, and I'm not sure how it will actually play out.

The microfossils not considered paleontological resources under these regulations (and so not covered by them), are defined as follows:

Microfossils, including conodonts and invertebrate fossils, but not including vertebrate fossils, that are individually too small to be studied without a microscope.

Sorry, too many "nots" there.  In a nutshell, vertebrate microfossils are covered, all other microfossils are not.

What does this mean in practice?  It certainly would have been hard to apply the proposed rules' definition of "reasonable amount" of common invertebrate and plant paleontological resources that can be casually collected to microfossils.  Particularly problematic would have been the limit of "five specimens of any one fossil kind."  (Section 291.5)  Plus I'm not sure what "fossil kind" means.

But when vertebrate microfossils are covered by the proposed rules, I have to wonder how that's going to work.  Under the proposed rules, as a casual collector, I can remove annually from appropriate areas up to one gallon (volume) or 25 pounds (weight) of material - part of the definition of "reasonable amount" - but, the reality is that, until I examine that material under the microscope, I will have no clue whether I've managed to remove vertebrate microfossils from forest land in violation of PRP.

It does get gray and complicated.  I've been accused of seeing trees and missing the forest.  This may just be another example.