“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.

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.

Tweak to BLM Fossil Collecting Regulations (No Change in Policy)

The Bureau of Land Management (BLM) issued a final rule today (May 17, 2010) that, among other provisions, corrects an omission in existing regulations concerning collection of fossils on public lands. It’s just a tweak, though it may be of some interest to those following the implementation of the Paleontological Resources Preservation Act (PRPA) in the Omnibus Public Land Management Act (P.L. 111-11).

Title 43 of the Code of Federal Regulations (CFR), Part 8360, governs visitor services and rules of conduct applicable to recreation areas on federal public lands administered by the BLM. Previously, the regulations at 43 CFR 8365.1-5(b), which allowed visitors to these public lands to collect certain nonrenewable resources, did not reflect actual BLM policy because they omitted common plant fossils as a type of fossil that could be collected. This final rule amends this regulation to state that visitors to these public lands are permitted to collect “reasonable amounts of the following for noncommercial purposes: . . . (2) Nonrenewable resources such as rock and mineral specimens, common invertebrate and common plant fossils, and semiprecious gemstones . . . .” This is current BLM policy which has already been in line with the PRPA provisions.

PRPA Regulation Pipeline

PRPA regs are somewhere in the pipeline. In the supplementary material to today’s rule, the BLM states that proposed rules on the PRPA will be released “in the near future.”

Interestingly, this statement was made in the context of a discussion of two comments that called on the BLM to clarify its policy prohibiting sale or barter of fossils collected on BLM land by commercial collectors, as well as by hobbyists. The BLM response is a bit confusing to me. It notes that certain terms in the PRPA concerning casual collecting will have to be defined and, so, it is not necessary to address this issue at this juncture. Not sure I understand the relationship between the question being raised about the application of the sale and barter prohibition to the terms used in defining casual collecting.

Forget my confusion, the issue about sale or barter does remind me about how many aspects of the proposed PRPA regulations are likely to cause folks to lose their cool and enter the irrational zone.

Step on the Road to Regulations for the Paleontological Resources Preservation Act (with a passing comment on a favorite typographical error)

The publication of regulations to implement the Paleontological Resources Preservation Act is officially now a priority for the U.S. Department of the Interior for 2010, and one of four regulatory annual priorities for the Bureau of Land Management, which is part of Interior. This was announced recently by Interior in its Statement of Regulatory Priorities (look at pages 64253-64254 in the Federal Register, December 7, 2009). [Note: Each instance of highlighted text in this post provides a link to the relevant material on the web.] Interior noted that “BLM and the Park Service are co-leads of a team with the Forest Service that will be drafting a paleontological resources rule. The rule would address the protection of paleontological resources and how we would permit the collection of these resources.” “Hobby collection of common invertebrate plants and fossils” is identified as one of the issues the rule will address. [Later edit: The BLM has a nice web page that summarizes some of its responsibilities regarding paleontological resources on federal land, and tracks the regulatory process for implementing the new legislation.]

This is good news and takes us a step closer to implementing the uniform policy for paleontological resources on federal land enacted in the Omnibus Public Land Management Act of 2009 (Public Law 111-11). Development and enactment of the Paleontological Resources Preservation legislation has been discussed in previous posts on this blog (see Labels in column at right).

How Long Will It Take?

This announcement is important because it signals that work on the regs has continued apace and, though, it might seem to be taking a long time, as these things go, it hasn’t. In a prior life, I was involved with analyzing federal legislation and regulations – sometimes regs took years to emerge and sometimes they never did. In this case, though, the Executive Branch presumably has no option because the new law requires the administering Secretaries to issue regulations with an opportunity for public comment.

When might the regs emerge? How about November, 2010, for proposed regs? That, at least, is the date given in RIN: 1004-AE13, one of entries on the Interior “rule list” published on the web. (RIN is the acronym for Regulation Identifier Number.)

Parting Comment on a Favorite Typographical Error (and Advice to Rock & Mineral Collectors, Chill)

Please, rock and mineral collectors don’t panic when you read the full text of the Federal Register announcement of the BLM priorities on pages 64253-64252. It mistakenly states that the rule being drafted would address, among other issues, the “causal [sic] collection of rocks and minerals” (emphasis added) It won’t. The new law states that none of its provisions can be construed to “apply to, or require a permit for, casual collecting of a rock, mineral, or invertebrate or plant fossil that is not protected under this subtitle” (Section 6311, emphasis added) “Causal collection” won’t be covered in the regs, either.

I once wrote a paper for a college course in which I analyzed the central thesis of the class text, constructing a detailed and well reasoned argument based on the author’s use of the word “causal” in a key passage, only to have the professor blithefully assert (I was not one of his favorites) that “clearly” I’d made a mountain out of a typographical error. After some debate, we agreed to disagree.

Nero Wolfe & Orchids, Ammonites, and Secrecy

Secrecy. Conjures up nefarious deeds, people up to no good. During the fight over the Paleontological Resources Preservation Act, opponents attacked the legislation for requiring fossil locations on federal land to be kept secret. (“Violates scientific principles,” they railed. They failed to turn back the legislation – see previous posts on topic.) The other perspective on secrecy was on display in two recent articles about rare natural specimens being shielded from aggressive collectors.

Nero Wolfe

But, I didn’t consider a posting on collecting and secrecy until I felt the need to deal with some of life’s stresses by doing what I sometimes do under those circumstances, beat a retreat to detective Nero Wolfe’s Manhattan brownstone on West 35th Street (the house number is uncertain, at times the actual street is uncertain as well). With Archie Goodwin doing the legwork, there is such reassuring pleasure in being with Wolfe in the midst of a murder case. Frankly, the mysteries, recounted in Archie’s breezy style, aren’t the attraction. Rather, it’s the relief of being in that oasis of the ordered and familiar within the brownstone. Theodore Horstmann is at work on the more than 20,000 orchids in the top floor plant rooms or the potting room, joined by Wolfe each morning until 11 a.m. Fritz Brenner is in the kitchen creating gourmet masterpieces. Wolfe caps off a gastronomical feast with beer. I take great comfort when the detective says, “I rarely leave my home.”

Author Rex Stout’s fictional world lives on, giving succor, nearly 35 years after his death.

What prompted this posting was that the Wolfe story that came to hand from my library was the novella Black Orchids, one of those rarities in the Wolfe oeuvre in which the great detective actually spends a protracted period away from the brownstone. The world’s only black orchids are on display at a flower show and, given his deep orchid obsession, Wolfe has to see them for himself. It’s fascinating how far he will go to add these plants to his collection – not just leaving the brownstone, but, how about blackmail?

Clearly, collectors on the hunt are a threat.

Canby’s Bog Orchid in Maryland

To what lengths would most of us go to secure that special specimen for own collections? A recent article in the Washington Post offers one take. Recently, a rare orchid, Canby’s bog orchid (Platanthera X canbyi), appeared on Maryland’s Eastern Shore in the Nassawango Creek Preserve. Because this natural hybrid of two rare orchids hasn’t been seen in Maryland for a couple of decades, Joe Fehrer, who manages the preserve for the Nature Conservancy, only reluctantly agreed to announce the discovery, insisting that the exact location remain a secret.

Discussing orchid collectors, so-called “orchid heads,” Fehrer is quoted as saying, "They come here and search out rare orchids for their own gratification and remove them. . . . Which makes them all the more rare. We need to be careful. Some of these folks are real sleuths." (Hmmm, I doubt that sleuth Wolfe would consider traipsing through a tick-infested bog even with Platanthera X canbyi as the quarry.)

Fehrer protected the orchid long enough to ensure that its flowers faded and went to seed; one hopes they give rise to a colony of these plants.

Of course, despite the secrecy, orchid heads did find the flower, reportedly posting pictures of it online. The Post reporter quotes horticulture professor Scott Stewart as saying of orchid heads (he is a self-professed one) and their quest for a rare orchid, "The vast majority of us just want to see it. . . . Say they've seen it and check it off their ‘life list’ of orchids they want to view. But there is an extreme element. They want to dig it up and put it in their own personal collection, even if it's illegal. Just to have the satisfaction of knowing that they have it and no one else does fulfills something in their psyche."

[Environmental Intrigue on the Eastern Shore, Brigid Schulte, Washington Post, August 22, 2009 – link here.]

Ammonites in New Jersey

This is NOT the site in question.

Somewhere near Freehold, New Jersey, is a stream site giving up fossils of ammonites that may have survived the KT extinction at the end of the Cretaceous Period, though perhaps by only no more than a hundred years, so reports an article in the September, 2009, issue of Scientific American. This runs counter to the common understanding that ammonites completely expired in the KT extinction. Fascinating finding, if borne out by subsequent research.

I’ve screened for Cretaceous fossils in New Jersey, specifically at Big Brook (shown above). Perhaps this site bears some resemblance to Big Brook, though clearly the density of the thorny undergrowth guarding the unnamed stream is special, leading the New Jersey park ranger who discovered the site to call it Agony Creek.

Scientists have been working the site for several years, but the precise location has been kept secret in an effort to prevent looting. Apparently, those efforts have been successful though “poachers have already trawled nearby areas, on the prowl for fossil shark teeth.” I wonder if an article such as this redirects the “fossil heads” to ammonites.

[Digging Up Valuable Fossils in Suburban New Jersey: A fossil search for why some critters made it past the dinosaur-killing event, Charles Q. Choi, Scientific American Magazine, August 25, 2009 - link here.]

Secrecy

I do experience the collector’s impulse to find that beautiful or rare specimen (paleontological, in my case), so I understand that. What I don’t understand is the drive to collect regardless of the larger consequences, to destroy in that effort. But, clearly, it happens . . . often. Even Wolfe succumbed to blackmail in his drive to own the black orchids. As a result, I have come to accept fully that secrecy is a key weapon for those who are responsible for protecting and preserving irreplaceable natural treasures whether they be paleontological like the New Jersey ammonites or living plants like Canby’s bog orchid in Maryland. Without the financial resources to station guards at every important site or to erect barricades to wall out the unscrupulous collector, secrecy is critical. The Paleontological Resources Preservation Act got it right when it said anyone with a permit to gather fossils on federal land cannot reveal data about the location of the collection site without the Secretary’s written permission.

And When Secrecy Is No Longer An Option?

My favorite story of dealing with overly enthusiastic collectors (and the unscrupulous) after any chance of secrecy is blown and the site is readily accessible involves Dinosaur State Park in Rocky Hill, Connecticut (subject of a previous posting on this blog). In 1966, during the initial stages of building a new Connecticut State Highway Commission building, a bulldozer operator spotted the first of thousands of dinosaur tracks in slabs of sandstone. The project engineer informed higher ups, as well as the press. As a result, the site was invaded by collectors armed with hammers and saws. But, the Highway Commission responded quickly, stopping the project and protecting the site with fencing and, indeed, armed guards. Paleontologists were brought to the site and, based on their recommendation and legislative and executive responses, the area was designated a state park -- three weeks after the site was first discovered!!!

[This account is based on material on the Wesleyan University web site -- link here.]

A couple of informative postscripts to this story. First, though it’s probably apocryphal, it was rumored that when the Highway Department restarted its interrupted building project on a nearby site, the standing order for the bulldozer operators was to proceed at all costs, regardless of what turned up.

Second, just three years ago, new prints were found in another local construction site, but construction proceeded because the tracks were deemed to be of much lesser quality than those at Dinosaur State Park. These more recently discovered tracks were laid down in shale and so were more easily damaged than those at the State Park. In sharp dissent, the Hartford Courant newspaper reportedly editorialized, "The state treats tracks as if the giant reptiles were still making them. . . .The dinosaurs who made the latest set of tracks apparently lived in a bad part of town – the reptilian equivalent of a ghetto." Fine righteous anger.

[Article on new find posted on September 6, 2006 on the science.qj.net site -- link here.]

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).

Update on Paleontological Resources Preservation

The Senate passed S. 22 earlier today. See previous posts on the Paleontological Resources Preservation Act for background on this legislation.

In the future, rather than clutter my posts with little squibs about the status of this legislation, I will be tracking its status in the sidebar column to the right. Of course, really important developments (well, any that get my blood pressure up) will still prompt a separate post.

Update on Paleontological Resources Preservation

This morning (Wednesday, January 14), the Senate voted to invoke cloture on debate over S. 22, the Omnibus Public Land Management Act of 2009. This means that, in the next day or so (possibly as soon as Thursday), the Senate may vote on passage of the legislation. As I have noted, among the myriad provisions of this bill is the language of the Paleontological Resources Preservation Act considered last Congress (S. 320 and H.R. 554). The opposition continues to mischaracterize the impact of the legislation on amateur fossil collecting on federal land -- we have very limited access now which is unlikely to change under the legislation. Rather, the legislation will give teeth to provisions prohibiting the taking of fossils from federal land for commercial purposes. This a good step and should be supported.

Background on the controversy is covered in prior posts.

Update on Paleontological Resources Preservation

Today, January 11, the Senate invoked cloture on moving to consideration of S. 22, the Omnibus Public Land Management Act of 2009. This is part of the byzantine process by which legislation is often considered in the United States Senate. This cloture vote means that the Senate has cut off debate over being able to even consider the bill. As a result, it can now begin debate on the legislation itself during the coming days.

As noted in a prior post, the Paleontological Resources Preservation legislation is just a part of this bill, a very small part. This over 1,000 page bill contains myriad provisions addressing such things as extensions of the U.S. wilderness system, establishment and expansion of federal parks, water use issues, etc. Lots in there to generate support for the overall bill, as well as opposition.

Background on the controversy over the Paleontological Resources Preservation provisions included in S. 22 is covered in prior posts.

Update on Paleontological Resources Legislation

Well, the effort has resumed to enact a uniform policy governing the collecting of fossils on federal land. The United States Senate is scheduled to consider legislation as soon as Sunday, January 11 (I'm impressed -- apparently, the Senate will be in session on Sunday).

On January 7, 2009, Senator Jeff Bingaman (D-NM) introduced S. 22, Omnibus Public Land Management Act of 2009, which contains language nearly identical to the Paleontological Resources Preservation Act as considered in the Senate during the previous Congress (see S. 320 and S. 3123, 110th Congress -- see previous posts on this legislation). Bingaman is chair of the Senate Committee on Energy and Natural Resources. This legislation appears to be on a fast track, since it has been placed on the Senate calendar and, on January 9, a motion was filed to proceed to full Senate consideration. A cloture motion on the motion to proceed was also filed that day in an effort to end any debate on the motion to proceed. A vote is scheduled for Sunday, January 11th, on the cloture motion.

Paleontological Resources Preservation Act -- Another Round?

Well, the 110th Congress has come and gone, and the Paleontological Resources Preservation Act never made it through either chamber. Too bad. I certainly hope there will be another push by the U.S. Congress during the upcoming session. For almost a full decade now, members have been trying to implement legislation to create a uniform policy protecting fossils on federal land. The fragmentation and ineffectiveness of current policies were identified by the U.S. Department of the Interior in 2000. My sense is that opposition has been coming primarily from commercial fossil collecting interests.

We Always Assume Someone is Out to Screw Us

Yes, we always assume someone is out to screw us. Problem is, we’re often right about it. We just don’t know when we’re right and who’s responsible. We’re particularly inclined to put our faith in that person who warns us that someone else is out to get us. Rather, we should heed that little voice in our heads that says, “Beware of people who claim to have your best interests at heart.” (In my case, the little voice says, “Beware of steering committees.” It’s a long story. Maybe later.)

The situation is this. The U.S. Congress has several bills before it that seek to create a uniform policy governing the collecting of fossils on federal land. The title of the bills is the Paleontological Resources Preservation Act (H.R. 554 and S. 320 – also S. 3213 includes the text of S. 320 in it). Current policies on this do differ from federal agency to agency and, for a decade or so, the Congress has been working to bring this legislation to completion.

So, what’s the issue for folks like me? Well, there’s a buzz in amateur paleontological and fossil collecting circles that this legislation will screw us amateur collectors, prohibiting our collecting and imposing draconian penalties if we inadvertently violate its provisions.

Hey, I didn’t know that, under the current patchwork of policies, I could even collect fossils on federal lands!!

Don’t be ridiculous you gullible amateur collector. You can’t collect on federal lands, with one exception. On land under the administration of the Bureau of Land Management, you can collect invertebrate fossils, petrified wood, and other plant fossils. If, by chance, you’re in this for the money from selling fossils (a commercial fossil collector), then you’re really black listed and prohibited from collecting on any federal land.

To the point, the legislation under consideration specifically allows the Secretaries of the Interior and Agriculture (depends upon whose land is involved) to permit “casual collecting” of invertebrate and plant fossils. That’s amateurs.

So, who’s stirring up the concern of amateur fossil collectors about this legislation? As best I can figure it out, the commercial fossil collecting interests are largely behind it, trying to scare us in order to scuttle the legislation. Their fear is that this legislation would not only make it crystal clear that commercial fossil collecting on federal land is out, but establish penalties for violating that prohibition that are stiff enough to actually deter those collectors from despoiling federal land in their search for commercially valuable fossils. Unfortunately, my colleagues among amateur collectors are just as inclined to believe they’re being screwed as is anyone else, particularly if the purported villain is the federal government.

For once, it appears that the Congress is trying to protect federal land and keep some folks from using it for personal financial gain. It’s about time. I, for one, am in favor of this legislation. Doesn’t affect me and I think we need a uniform policy. So, who’s out to screw us? Believe me, somebody is. Well, first, the “us” in this case isn’t just amateur fossil collectors, it’s the U.S. public who are the "screwees". And the “screwers”? Well, it’s not the feds. I’ve drawn my own conclusion.