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.

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.

It's Now Law

The Paleontological Resources Preservation legislation is now law, signed by President Obama today (March 30, 2009). Next step is implementation.

FINALLY!! – The Paleontological Resources Preservation Legislation Has Cleared the Congress

On Wednesday, March 25, 2009, by a vote of 285 to 140, the House passed H.R. 146, which includes the Paleontological Resources Preservation legislation. It now goes on to the President for his signature. It was a long struggle, providing new insight into the amazing labyrinth that is the legislative process, and into the willingness of partisans in political battles to stretch the truth and stoke fears.

Background on this legislation is provided in previous posts on this blog. Recent legislative action is highlighted in the column on the right.

This process will not be over when the President signs the bill. The provisions will go into an implementation stage. I hope that, when the Executive Branch writes regulations or develops policies to implement the legislation, substantial attention will be paid to ensuring that anyone coming onto Federal land is fully informed about what he or she may and may not do with fossils on that public land.

Paleontological Resources Preservation Legislation Passes the Senate -- Again

What a twisted and beautiful creature is the legislative process. On March 19, 2009, the Paleontological Resources Preservation legislation was, once again, passed by the Senate. It now goes back to the House where, finally, it may be approved and sent on to the President for enactment into law.

This time, the Paleontological Resources Preservation legislation and the rest of the Omnibus Public Land Management Act of 2009 (S. 22), were added by the Senate to H.R. 146, a bill previously passed by the House. (H.R. 146 was originally titled the Revolutionary War and War of 1812 Battlefield Protection Act.) The whole package now returns to the House.

Before it was passed, the Senate approved an amendment by Senator Tom Coburn (R., Oklahoma) that modified the provisions of the Paleontological Resources Preservation legislation. The legislation now requires (“shall allow”) the administering federal Secretary to allow casual collecting on public land; previously, the language was permissive (“may allow”).

Please note, the definition of casual collecting (i.e., collecting without a permit) is NOT changed. It is still limited to “common invertebrate and plant paleontological resources for non-commercial personal use.”

The Coburn amendment also modified the civil penalties, and rewards and forfeiture provisions of the legislation. Among other changes, it removed language that previously would have subjected to forfeiture a person’s vehicles and equipment used in violating the legislation.

Have to love it. The stated purpose of the Coburn amendment was: “To protect scientists and visitors to federal lands from unfair penalties for collecting insignificant rocks.” Right. As Senator Coburn said, in somewhat twisted syntax, “All it does is lighten up on the inadvertent and the non-inappropriate looking for small fossils and small rocks that may not even contain fossils.”

Curiously, his floor statement only described the change of “may” to “shall,” with no references to the other changes on the penalty and forfeiture side. I wonder if those changes are more significant than I realize. [Later edit: Senator Bingaman (D., New Mexico), floor manager for the bill, spoke in favor of all of the changes that the Coburn amendment included, so I guess the conclusion is that the penalty and forfeiture modifications were de minimis.]

Taphonomy -- It's Difficult to Survive the End

. . . the report of my death was an exaggeration.

~Mark Twain, note written May 31, 1897
[for the story behind this quip see Lighting Out for the Territory by Shelley Fisher Fishkin (1998)]


On Wednesday, March 11, 2009, the House of Representatives failed to pass S. 22, the Omnibus Public Land Management Act of 2009, under suspension of the rules (requiring a 2/3rds vote in favor). This is disappointing because I favor the Paleontological Resources Preservation provisions that are a very small part of this complex, massive bill. (Background on the Paleontological Resources Preservation provisions can be found in previous posts in this blog, and recent action on the legislation is described in the column on the right.)

This legislative comment is not really what I intended to start this post with, but it will certainly do as a segue. Some folks who have engaged in debate over provisions appear to consider them dead as a result of this vote. Wait, I say, “The report of its death is an exaggeration" (slightly misquoting Twain, but not nearly as greatly as others have). There were 282 members of the House who voted in favor of the omnibus bill, much more than enough to pass the whole bill under normal procedures. So, I anticipate that these provisions will survive their "death" and come back before the House later. (Until then, a less-than-productive debate will continue.)

Death and what survives death are in fact what I was intending to write about. I went on a hunt earlier this week for fossilized teeth from two sharks, the Otodus obliquus and the Palaeocarcharodon orientalis, teeth from the latter seemingly so rare as to have attained near mythic status in these parts. The venue was a Paleocene formation that sheds its fossils onto the shore and into the murky waters of the Potomac River.

It was one of those early Spring days after a front has passed through and we’re treated to deep blue skies and a good wind.



As I walked north, I experienced that curious phenomenon in which some things in my environment suddenly stand out in stark relief. It’s not a matter of being present in the moment which implies being sharply aware of all that is transpiring around me. No, it’s a very selective awareness, it’s the donning of 3-D glasses causing a blurry red-cyan picture to suddenly shoot objects toward my face. In this case, what came rushing toward me out of the background of the river, shore, cliffs, and woods was the mortality of living creatures.

I have to blame it on Donald Prothero’s engaging textbook Bringing Fossils to Life: An Introduction to Paleobiology (1998). The night before, I read the first chapter about taphonomy, the study of the processes by which organisms become fossils. In essence, it’s the study of what happens to organisms after death, revealing the incredibly long odds against the creation of fossils from any assembly of living entities, odds that are even longer for some creatures, such as those with only soft body parts, than for others. So much happens to breakup and destroy the once living being. These processes impose harsh, effective filters that militate against fossil creation – there isn’t much, if anything, left to fossilize. The agents of this destruction include, among others, predators, scavengers, bacteria, and the weather. In this environment, wave action works a great power.

There I was, scanning the shore line for fossilized teeth, while evidence of the breakup of the once living began standing out against the background – a dead fish in the early stages of decay and one scavenged to its bare essence; the ravaged pelt and hooves of a dead deer, its bones long destroyed or scattered. The message was clear, these were not fossils in the making. Most death is not. Fossilization, as Prothero describes, entails some very special circumstances.



Still, despite the unlikelihood of fossilization and subsequent discovery, abundant fossilized shark teeth did roll in the surf, being briefly exposed and then covered, while others lay baking in the sun where waves had left or revealed them. I spotted part of a tooth root in the wet sand and made my day when I pulled out a nice Otodus obliquus (1 ¼ inches on the slant) with possibly a pathological kink up near the tip.

Later, it occurred to me, as I considered the juxtaposition of the decayed and scattered bodies of fish and deer with the fossilized teeth that littered the beach that day, that shark teeth may constitute some sort of special case in taphonomy because it’s highly unlikely that the tooth I found came from a dead O. obliquus. No, sharks lose teeth repeatedly throughout their lives, in the tens of thousands over the course of a lifetime. So, nearly all of the fossilized shark teeth found by collectors are those lost by sharks living at the time the teeth separated from the jaw. Ironically, while alive, sharks shed abundantly the one component of their anatomy that is most likely to fossilize – their enameloid-covered teeth. Sharks are cartilaginous creatures after all. And these teeth are lost in bodies of water where they fall to the bottom and may potentially encounter an environment that nurtures their fossilization. From the perspective of this collector, it’s a most excellent process that may better the odds of survival as a fossil.

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.