Tuesday, September 23, 2008

Paleontological Resources Preservation Act


Thinking back to last weeks news of fossil theft on public lands I want to remind everyone that the Paleontological Resources Preservation Act (HR 554 - McGovern MA) is still out in congress and needs to be address, not ignored and put off till hell freezes over.

This bill does not effect private land or private collections, as some fear. It does say that rare and scientifically important paleo resources found in the public domain should continue to be the property of all Americans. I understand that "amateur" fossil collectors are worries that it is going to take away their privileges, but it doesn't. It still allows for the collection of common fossil invertebrates and plants on public land, just like you can today. It will make the laws more clear and uniformed as to what can and can't be collected on public land. Do remember: this is not a bill to prohibit the sell of fossils. It does not say that you can not collect and/or sell fossils from private land. The bill is ensuring that fossils in the public sector will remain there for future generations to enjoy. It is trying to encourage partnership between everyone in the paleontology community.

The public opinion on this bill seems a little off to me. You can read some of the public comments here and see how people have been voting on their view of this bill (you can also vote, please see the poll to the right).

I would love to get everyone's opinions on this. What do you like about this bill? What do you dislike about the bill?

Lets dissect the bill (which you can read for yourself here; comments in green are my own. IF you do not want to wade though all this please scroll to the bottom of this post and read my final point.):

Section 2 of HR 554 offers and clarifies some definitions:

  • (1) CASUAL COLLECTING- 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.
  • (6) PALEONTOLOGICAL RESOURCE- The term `paleontological resource' means any fossilized remains, traces, or imprints of organisms, preserved in or on the earth's crust, that are of paleontological interest and that provide information about the history of life on earth, except that the term does not include--
        (A) any materials associated with an archaeological resource (as defined in section 3(1) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb(1)); or
        (B) any cultural item (as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001)).
Section 3 clarifies the management issue of fossils found on federal land:

  • In General- The Secretary [of the Interior] shall manage and protect paleontological resources on Federal lands using scientific principles and expertise. The Secretary shall develop appropriate plans for inventory, monitoring, and the scientific and educational use of paleontological resources, in accordance with applicable agency laws, regulations, and policies. These plans shall emphasize interagency coordination and collaborative efforts where possible with non-Federal partners, the scientific community, and the general public.
Section 4 would see the Secretary of the Interior establish a program to increase public awareness about the significance of paleontological resources. That is a great idea! Why would anyone disagree with this?

Section 5 talks about the collection of fossils on public lands:

(a) Permit Requirement -
      (1) IN GENERAL- Except as provided in this Act, a paleontological resource may not be collected from Federal lands without a permit issued under this Act by the Secretary.
      (2) CASUAL COLLECTING EXCEPTION- The Secretary may allow casual collecting without a permit on Federal lands controlled or administered by the Bureau of Land Management, the Bureau of Reclamation, and the Forest Service, where such collection is consistent with the laws governing the management of those Federal lands and this Act. (So how is this different from now and why are people all worked up over it?)
      (3) PREVIOUS PERMIT EXCEPTION- Nothing in this section shall affect a valid permit issued prior to the date of enactment of this Act.
    (b) Criteria for Issuance of a Permit- The Secretary may issue a permit for the collection of a paleontological resource pursuant to an application if the Secretary determines that--
      (1) the applicant is qualified to carry out the permitted activity;
      (2) the permitted activity is undertaken for the purpose of furthering paleontological knowledge or for public education;
      (3) the permitted activity is consistent with any management plan applicable to the Federal lands concerned; and
      (4) the proposed methods of collecting will not threaten significant natural or cultural resources.
    (c) Permit Specifications- A permit for the collection of a paleontological resource issued under this section shall contain such terms and conditions as the Secretary deems necessary to carry out the purposes of this Act. Every permit shall include requirements that--
      (1) the paleontological resource that is collected from Federal lands under the permit will remain the property of the United States;
      (2) the paleontological resource and copies of associated records will be preserved for the public in an approved repository, to be made available for scientific research and public education; and
      (3) specific locality data will not be released by the permittee or repository without the written permission of the Secretary.
    (d) Modification, Suspension, and Revocation of Permits-
      (1) The Secretary may modify, suspend, or revoke a permit issued under this section--
        (A) for resource, safety, or other management considerations; or
        (B) when there is a violation of term or condition of a permit issued pursuant to this section.
      (2) The permit shall be revoked if any person working under the authority of the permit is convicted under section 7 or is assessed a civil penalty under section 8.
    (e) Area Closures- In order to protect paleontological or other resources and to provide for public safety, the Secretary may restrict access to or close areas under the Secretary's jurisdiction to the collection of paleontological resources.
As far as keeping our federal resources within the country (c1), what is wrong with that? I say great! Other countries such as Argentina have these same requirements. c3 just gives more protection to the resource and its locality.

Section 6 speaks of the curation for the resources:
  • Any paleontological resource, and any data and records associated with the resource, collected under a permit, shall be deposited in an approved repository. The Secretary may enter into agreements with non-Federal repositories regarding the curation of these resources, data, and records.
Is this not what we already do? This, once again, sounds like a great idea to me.

Section 7 talks about prohibited acts and the criminal penalties associated with them:

    (a) In General- A person may not--
      (1) excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any paleontological resources located on Federal lands unless such activity is conducted in accordance with this Act;
      (2) exchange, transport, export, receive, or offer to exchange, transport, export, or receive any paleontological resource if, in the exercise of due care, the person knew or should have known such resource to have been excavated or removed from Federal lands in violation of any provisions, rule, regulation, law, ordinance, or permit in effect under Federal law, including this Act; or
      (3) sell or purchase or offer to sell or purchase any paleontological resource if, in the exercise of due care, the person knew or should have known such resource to have been excavated, removed, sold, purchased, exchanged, transported, or received from Federal lands.
    (b) False Labeling Offenses- A person may not make or submit any false record, account, or label for, or any false identification of, any paleontological resource excavated or removed from Federal lands.
    (c) Penalties- A person who knowingly violates or counsels, procures, solicits, or employs another person to violate subsection (a) or (b) shall, upon conviction, be fined in accordance with title 18, United States Code, or imprisoned not more than 10 years, or both; but if the sum of the commercial and paleontological value of the paleontological resources involved and the cost of restoration and repair of such resources does not exceed $500, such person shall be fined in accordance with title 18, United States Code, or imprisoned not more than one year, or both.
    (d) General Exception- Nothing in subsection (a) shall apply to any person with respect to any paleontological resource which was in the lawful possession of such person prior to the date of the enactment of this Act.
Section 7a1, is EXACTLY what happened to the Hanksville-Burpee site! Section 7b is a wonderful addition. This will get you fired in most places (or it should if you know you are doing it and it is wrong) and is known to have happened in the past*. It would be nice to have a law that would actually deal with these offenses with the appropriate penalties.

*(one well publicized case from 2005/2006 where a geology professor was alleged to be doing these types of practices comes to mind. Does anyone know if there was ever a finding in this case from the SVP ethics board or the museum in question?).

Section 8 talks about the civil penalties:
(a) In General-
      (1) HEARING- A person who violates any prohibition contained in an applicable regulation or permit issued under this Act may be assessed a penalty by the Secretary after the person is given notice and opportunity for a hearing with respect to the violation. Each violation shall be considered a separate offense for purposes of this section.
      (2) AMOUNT OF PENALTY- The amount of such penalty assessed under paragraph (1) shall be determined under regulations promulgated pursuant to this Act, taking into account the following factors:
        (A) The scientific or fair market value, whichever is greater, of the paleontological resource involved, as determined by the Secretary.
        (B) The cost of response, restoration, and repair of the resource and the paleontological site involved.
        (C) Any other factors considered relevant by the Secretary assessing the penalty.
      (3) MULTIPLE OFFENSES- In the case of a second or subsequent violation by the same person, the amount of a penalty assessed under paragraph (2) may be doubled.
      (4) LIMITATION- The amount of any penalty assessed under this subsection for any one violation shall not exceed an amount equal to double the cost of response, restoration, and repair of resources and paleontological site damage plus double the scientific or fair market value of resources destroyed or not recovered.
    (b) Petition for Judicial Review; Collection of Unpaid Assessments-
      (1) JUDICIAL REVIEW- Any person against whom an order is issued assessing a penalty under subsection (a) may file a petition for judicial review of the order in the United States District Court for the District of Columbia or in the district in which the violation is alleged to have occurred within the 30-day period beginning on the date the order making the assessment was issued. Upon notice of such filing, the Secretary shall promptly file such a certified copy of the record on which the order was issued. The court shall hear the action on the record made before the Secretary and shall sustain the action if it is supported by substantial evidence on the record considered as a whole.
      (2) FAILURE TO PAY- If any person fails to pay a penalty under this section within 30 days--
        (A) after the order making assessment has become final and the person has not filed a petition for judicial review of the order in accordance with paragraph (1); or
        (B) after a court in an action brought in paragraph (1) has entered a final judgment upholding the assessment of the penalty, the Secretary may request the Attorney General to institute a civil action in a district court of the United States for any district in which the person if found, resides, or transacts business, to collect the penalty (plus interest at currently prevailing rates from the date of the final order or the date of the final judgment, as the case may be). The district court shall have jurisdiction to hear and decide any such action. In such action, the validity, amount, and appropriateness of such penalty shall not be subject to review. Any person who fails to pay on a timely basis the amount of an assessment of a civil penalty as described in the first sentence of this paragraph shall be required to pay, in addition to such amount and interest, attorneys fees and costs for collection proceedings.
    (c) Hearings- Hearings held during proceedings instituted under subsection (a) shall be conducted in accordance with section 554 of title 5, United States Code.
    (d) Use of Recovered Amounts- Penalties collected under this section shall be available to the Secretary and without further appropriation may be used only as follows:
      (1) To protect, restore, or repair the paleontological resources and sites which were the subject of the action, or to acquire sites with equivalent resources, and to protect, monitor, and study the resources and sites. Any acquisition shall be subject to any limitations contained in the organic legislation for such Federal lands.
      (2) To provide educational materials to the public about paleontological resources and sites.
      (3) To provide for the payment of rewards as provided in section 9.
Once you wade through all the jargon, section 8 seems fair. Am I incorrect?

Section 9 talks about rewards and forfeiture.
Section 10 talks about confidentiality:
  • Information concerning the nature and specific location of a paleontological resource the collection of which requires a permit under this Act or under any other provision of Federal law shall be exempt from disclosure under section 552 of title 5, United States Code, and any other law unless the Secretary determines that disclosure would--
      (1) further the purposes of this Act;
      (2) not create risk of harm to or theft or destruction of the resource or the site containing the resource; and
      (3) be in accordance with other applicable laws.
Section 11 explains the regulations: "As soon as practical after the date of the enactment of this Act, the Secretary shall issue such regulations as are appropriate to carry out this Act, providing opportunities for public notice and comment."
Section 12 gives savings provisions:
  • Nothing in this Act shall be construed to--
      (1) invalidate, modify, or impose any additional restrictions or permitting requirements on any activities permitted at any time under the general mining laws, the mineral or geothermal leasing laws, laws providing for minerals materials disposal, or laws providing for the management or regulation of the activities authorized by the aforementioned laws including but not limited to the Federal Land Policy Management Act (43 U.S.C. 1701-1784), Public Law 94-429 (commonly known as the `Mining in the Parks Act') (16 U.S.C. 1901 et seq.), the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201-1358), and the Organic Administration Act (16 U.S.C. 478, 482, 551);
      (2) invalidate, modify, or impose any additional restrictions or permitting requirements on any activities permitted at any time under existing laws and authorities relating to reclamation and multiple uses of Federal lands;
      (3) apply to, or require a permit for, casual collecting of a rock, mineral, or invertebrate or plant fossil that is not protected under this Act;
      (4) affect any lands other than Federal lands or affect the lawful recovery, collection, or sale of paleontological resources from lands other than Federal lands;
      (5) alter or diminish the authority of a Federal agency under any other law to provide protection for paleontological resources on Federal lands in addition to the protection provided under this Act; or
      (6) create any right, privilege, benefit, or entitlement for any person who is not an officer or employee of the United States acting in that capacity. No person who is not an officer or employee of the United States acting in that capacity shall have standing to file any civil action in a court of the United States to enforce any provision or amendment made by this Act.
Aren't 3 and 4 of section 12 what some folks are worried the result of this bill will be? That any kid will not be able to collect a fossil from their land or some other private land? I would hope this would be a thing people would be happy about.

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I guess this is the point where you make a decission. I would like to encourage you to write your representative regarding the bill so they know that folks are at least interested in it, and to try to get it moving again in congress. The Society of Vertebrate Paleontology is in support of this bill, and if you are also, you can download a model letter here to send to your Senator and Representative here.

If you are not sure who your representative is you can use the search function here (upper left hand side).

6 comments:

Traumador said...

I'm all for it.

One slight problem. My opinion doesn't matter. I'm Canadian (and live in New Zealand too boot!).

Speaking from a fossil background in Alberta, strong protection laws are a very useful thing to have, and make it very clear cut whose in the right or wrong when it comes to collecting.

To bad about the Utah poach. I just re-read The Dinosaur Dealers by Dr. John Long a week before it. A great little book (scary as though!) about the whole world of illegal and immoral fossil dealings, for anyone interested in the subject.

Silver Fox said...

I think it clarifies things considerably from the Antiquities Act (AA) and other laws that may have followed. I'm not sure that there were provisions for 'casual collecting' in earlier laws - I always thought, since being informed of the AA in the mid-70's, that collecting fossils was technically illegal in all cases.

So thanks for the information!

Alton Dooley said...

Sounds good to me. I've been collecting on a BLM permit this year, and to be honest it doesn't sound any different. I'd be curious to hear what the current BLM and other fed officials think (the ones that actually have to directly deal with paleontologists and with enforcement).

This paper in the Duke Law Journal is worth a read:

http://www.law.duke.edu/shell/cite.pl?54+Duke+L.+J.+1031

The author, Alexa Chew, was a paleontology technician before she entered law school.

ReBecca Foster said...

Thanks for the book tip Traumador! You opinion counts to us, US citizen or not :)

Glad to help Silver Fox. I try to post information that will be helpful.

Alton: I agree. Thanks for the paper link. I will give it a read!

Vultur said...

One thing I don't like is "invertebrate and plant". I think common shark teeth should be included, too. Otherwise it sounds good.

Tony Edger said...

Too bad commercial fossil collecting interests are stirring up opposition to this legislation by convincing amateur fossil collectors that it's bad news for them. I just posted my take on it at
fossilsandotherlivingthings.blogspot.com