Fossils on Federal Lands: Current Federal Laws and Regulations

Fossils on Federal Lands: Current Federal Laws and Regulations

98-766 A
CRS Report for Congress
Received through the CRS Web
Fossils on Federal Lands:
Current Federal Laws and Regulations
September 11, 1998
(name redacted)
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

ABSTRACT
This report provides a brief overview of current federal laws and regulations on the
protection and removal of fossils from federal lands. It reviews the provisions of statutes of
general application and compares the laws and regulations of the Bureau of Land
Management, the National Park Service, the Forest Service, and the Department of Defense.
The analysis notes areas that are unclear and discusses relevant penalties. The report will
not be updated.

Fossils on Federal Lands:
Current Federal Laws and Regulations
Summary
Recent articles in the press have highlighted the issue of unauthorized removal
of fossils and other paleontological materials from federal lands. Fossils can be
highly valuable in the scientific sense, but increasingly there also is a lucrative
market for fossils that fuels their unauthorized collection and removal. Improper
excavation can impair or destroy the value of the resources for scientific analysis.
On many of the federal lands, particularly in the West, scarce personnel may be
responsible for vast acreage, a fact that can make protection of fossil and other
resources difficult. In addition, the relevant laws are unclear in several respects.
This report provides a brief overview of current federal laws and regulations on
the protection and removal of fossils from federal lands. It compares the laws and
regulations of several of the principal federal land management agencies, namely the
Bureau of Land Management (BLM), the National Park Service (NPS), the Forest
Service (FS), and the Department of Defense (DOD), and discusses penalties.
Although particular statutes or executive actions may clearly protect fossils in
particular areas, and although current general laws and regulations appear to permit
the protection of fossils on federal lands, we are aware of no current general
management statute that expressly directs such protection or regulation. Available
protection may vary depending on whether the federal lands in question were or are
a part of the public domain or were acquired under various authorities. Authority for
federal agencies to allow the collection and disposal of fossils is unclear in several
respects, due in part to uncertainties as to the application of significant statutes such
as the Antiquities Act and the mining and mineral disposal laws to paleontological
resources. The NPS is directed to protect National Park System resources and both
the FS and BLM have general authority to protect resources and to regulate the use
and occupation of the lands managed by them. DOD has much greater control over
access to and use of its lands than do the multiple use agencies. The Antiquities Act
applies to all the agencies, covers paleontological resources in some respects, but is
ambiguous in others, and there is some question as to whether it is unconstitutionally
vague as a basis of criminal prohibitions and penalties. The general theft provisions
and trespass actions are available to protect fossil resources on federal lands.
Specific penalties associated with the provisions establishing offenses typically
are quite low relative to the market and scientific value of many fossils. However,
the general federal fine provisions make higher maximum fines available.
Because the legal protection of paleontological resources could be said to lack
clarity, uniformity, and consistency, some have suggested that additional background
and analysis from the relevant agencies and possible express legislative direction on
these issues might be valuable.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
General Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Antiquities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Archaeological Resources Protection Act of 1979 . . . . . . . . . . . . . . . . . . . . 4
Archeological and Historic Preservation Act of 1974 . . . . . . . . . . . . . . . . . . 5
Criminal Theft Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Mineral Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trespass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Agency-Specific Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
National Park Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Bureau of Land Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Forest Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
General Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Fossils on Federal Lands:
Current Federal Laws and Regulations
Introduction
Recent articles in the press have highlighted the issue of unauthorized removal
of fossils and other paleontological materials from federal lands. Fossils can be
highly valuable in the scientific sense, but increasingly there also is a lucrative
market for the sale of fossils1 that fuels their unauthorized collection and removal.
Improper excavation can impair or destroy the value of the resources for scientific
analysis. On many of the federal lands, particularly in the West, scarce personnel
may be responsible for vast acreage, a fact that can make protection of fossil and
other resources difficult.
This report provides a brief overview of current federal laws and regulations on
the protection and removal of fossils from federal lands. It compares the laws and
regulations of several of the principal federal land management agencies, namely the
Bureau of Land Management (BLM), the National Park Service (NPS), the Forest
Service (FS), and the Department of Defense (DOD), and discusses penalties.2
Each of the agencies discussed has a different body of law that governs its
mission and duties, although there also are some relevant laws that apply to several
or all of the agencies. In addition, different laws may apply to agency lands
depending on whether the lands in question are “public domain” lands or “acquired
lands.”3 Each of the four agencies has authorities that would permit the protection
of fossils on the federal lands, but no current general management statute that
expressly directs such protection or regulation could be identified. In addition,
authority for their collection and disposal is unclear and significant statutes such as
the Antiquities Act and the mining and disposal laws are ambiguous as to their
application to paleontological resources.
1The Tyrannosaurus rex skeleton known as Sue recently sold for over $8 million. NPR
Morning Edition, September 1, 1998.
2The National Park Service and the Bureau of Land Management are in the Department of
the Interior; the Forest Service is in the Department of Agriculture.
3In general, public domain lands are those the United States obtained from a foreign
sovereign as opposed to those the United States “acquired” from a state or individual. Most
BLM lands are public domain lands and many of the national forests and DOD lands in the
West were reserved from the public domain. Typically different laws apply to public
domain and acquired lands.

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General Statutes
The Antiquities Act
The Antiquities Act of 19064 authorizes the President to declare “objects of
historic or scientific interest” situated on lands owned or controlled by the
government of the United States to be national monuments. Certainly
paleontological materials can be of “scientific interest” and several national
monuments have been created expressly to protect fossils and paleontological
resources.5 When fossils are included in a national monument, the applicable
restrictions, prohibitions, and penalties are clear, because the general authorities
applicable to the National Park System are available. In addition to these executive
actions creating national monuments, some statutes have created national monuments
in particular areas and expressly protected fossil deposits.6
Section 1 of the Antiquities Act penalizes any person who removes or destroys
any “object of antiquity,” regardless of which federal agency manages the lands or
whether the actions are within a national monument or not. The wording is:
Any person who shall appropriate, excavate, injure, or destroy any historic or
prehistoric ruin or monument, or any object of antiquity, situated on lands owned
or controlled by the Government of the United States, without the permission of
the Secretary of the Department of the Government having jurisdiction over the
lands on which said antiquities are situated, shall, upon conviction, be fined in a
sum of not more than $500 or be imprisoned for a period of not more than ninety
days, or shall suffer both fine and imprisonment, in the discretion of the court.7
(Emphasis added.)
“Objects of antiquity” is not defined in the Act or in the implementing
regulations.8 Therefore, although fossils clearly can be protected by the President
through their inclusion in a national monument under section 2 of the Act, it is not
clear on the face of the statute whether their removal or injury as objects of antiquity
can be punished under the criminal penalties of § 1 of the Act.
4Act of June 8, 1906, ch. 3060, 34 Stat. 225, codified at 16 U.S.C. §§ 431-433.
5E.g., Dinosaur National Monument, Proc. No. 1313, October 4, 1915, 39 Stat. 1752; Proc.
No. 2290, July 14, 1938, 53 Stat. 2454; Pub. L. No. 100-701, 102 Stat. 4641 and Petrified
Forest National Monument, Proc. No. 697, December 8, 1906, 34 Stat. 3266; Proc. No.
1167, July 31, 1911, 37 Stat. 1716; Proc. No. 1927, November 14, 1930, 46 Stat. 3040; Proc.
No. 1975, November 30, 1931, 47 Stat. 2486; Proc. No. 2011, September 23, 1932, 47 Stat.
2532, now a national park — see Pub. L. No. 85-358, 72 Stat. 69, 16 U.S.C. § 119.
6See, e.g. Agate Fossil Beds National Monument, Act of June 5, 1965, Pub. L. No. 89-33,
79 Stat. 123; Florissant Fossil Beds National Monument, Pub. L. No. 91-60, 83 Stat. 101;
Hagerman Fossil Beds National Monument, Pub. L. No. 100-696, 102 Stat. 4575 and Pub.
L. No. 101-512, 104 Stat. 1923..
716 U.S.C. § 433.
843 C.F.R. Part 3. These are old regulations that were revised in 1954 without explanatory
materials. 19 Fed. Reg. 8838 (December 23, 1954).

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The legislative history of the Act is quite sparse and not helpful on the issue of
fossils. The committee report is less than a half page in length and indicates only
that the bill had the support of the Archaeological Institute of America, the American
Anthropological Association, the Smithsonian Institution, and numerous museums.9
The report language does not indicate that paleontological resources could not be
protected under the Act (and, as noted above, fossils clearly can be objects of
scientific interest that can be protected through the creation of a national monument),
but neither the report nor the very brief comments on the floor indicate the intended
scope of the phrase “object of antiquity”used in the enforcement section. The
references to archaeological and anthropological (i.e. cultural) organizations might
support the argument that “objects of antiquity” does not include paleontological
objects.
However, section 3 of the Antiquities Act authorizes the Secretaries of the
Interior, Agriculture, and the Army to issue permits for the gathering of objects of
antiquity on lands under their jurisdiction and to publish regulations to carry out the
Act.10 One set of regulations currently applies to all three Secretaries and states that
the Secretary of the Interior has jurisdiction over antiquities on all government lands
other than those within the forest reserves, where the resources will be managed by
the Secretary of Agriculture, and those on military reservations, where the resources
will be managed by the Secretary of the Army.11 The regulations reflect the statute
and require a permit for the “gathering of objects of antiquity.” These permits may
be issued to “reputable museums, universities, colleges, or other recognized
scientific or educational institutions, or to their duly authorized agents.”12 Objects
of antiquity taken or collected without a permit or contrary to the terms of a permit
may be seized.13
In the past, BLM and FS have issued permits for the excavation or collection
of fossils under section 3 of the Antiquities Act as “objects of antiquity,” but in
recent times have looked to other authority for such collection because of a case in
which a court found the phrase “object of antiquity” to be unconstitutionally vague.14
A court in a subsequent case upheld a conviction involving destruction of ancient
cultural artifacts from a national forest on the grounds that those facts clearly
involved objects of antiquity.15 Although the Diaz case could be seen as limited by
its facts (it involved Antiquities Act criminal charges in a case involving modern
masks), it has called into question criminal enforcement actions under the Act.
Because paleontological materials are not clearly included in the wording of the
9S. Rep. 3797, 59th Cong., 1st Sess. (1906). The statement on the Senate floor simply
paraphrased the bill language, and the brief exchange on the House floor did not involve this
issue. See, 40 CONG. REC. 7331 (remarks of Sen. Patterson) and 7888 respectively.
1016 U.S.C. § 432.
1143 C.F.R. § 3.1.
1243 C.F.R. § 3.3.
1343 C.F.R. § 3.16.
14United States v. Diaz, 499 F. 2d 113 (9th Cir. 1974).
15United States v. Smyer, 596 F.2d 939(10th Cir. 1979), cert. denied, Smyer v. United States,
444 U.S. 843 (1979).

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statute and are not mentioned in its legislative history, the Act is regarded as possibly
being ambiguous enough in this regard that a criminal enforcement action under the
Act involving paleontological resources might not be successful.
Litigation over the bones of a Tyrannosaurus rex named Sue initially involved
charges brought under the Antiquities Act and therefore provides an example of an
instance when the “object of antiquity” language was applied to fossils. However,
it is not clear what happened to this particular criminal charge in the ensuing
sequence of litigation.16
Because the Archeological and Historic Preservation Act of 1974 directs that
federal lands and lands on which projects are federally financed or licensed be
surveyed for objects of scientific interest and that those “data” be protected.
Agencies seem to use this act to include paleontological resources among “cultural
resources” to protect them under the various statutes that direct protection of cultural
and historical resources. But the agencies have moved away from reliance on the
Antiquities Act for permitting and enforcement.
Arguably, on the one hand, the Act can be said implicitly to provide
management authority for an agency to protect paleontological resources in order to
preserve them for possible inclusion in a national monument or because they are
impliedly included within “objects of antiquity.” However, there is enough
uncertainty as to this last point that it may be difficult to obtain a conviction under
the criminal penalties section of the Antiquities Act.
Archaeological Resources Protection Act of 1979
The Archaeological Resources Protection Act of 1979,17 applies to
archaeological resources on all public lands and Indian lands, and in many ways has
superseded the Antiquities Act in the area of regulation of archaeological resources.
The Act specifically excludes nonfossilized and fossilized paleontological
specimens, except those associated with human sites.18
16A court reviewed the history of the litigation and noted that the Antiquities charge “seems
to have long since been forgotten ....” United States v. Larson, 110 F.3d 620, 629 (8th Cir.
1997). The defendant in the Larson case ultimately was charged with theft of federal
property, retention of stolen property and certain customs violations. The property in
question by that time in this series of cases was crinoid fossils — a marine invertebrate —
taken from Forest Service lands.
17Pub. L. No. 96-95, 93 Stat. 721, codified at 16 U.S.C. 470aa et seq.
18The regulations implementing the Act for the Department of the Interior are found at 43
C.F.R. Part 7; those of the Department of Agriculture are at 36 C.F.R. §296; and those of
DOD are at 32 C.F.R. §229.

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Archeological and Historic Preservation Act of 1974
The Archeological and Historic Preservation Act of 197419 provides for the
survey, removal, protection, and preservation of significant scientific, prehistorical,
historical, or archeological data that is threatened by any federal construction or any
project, activity, or program that is federally licensed or receives federal assistance.
This statute provides another means to consider and protect paleontological
resources as part of other federal actions, and to protect paleontological resources
along with “cultural resources,” but does not authorize general disposal of such
resources.
Criminal Theft Provisions
Another important general statute that might be applied to removal of fossils
from federal lands is 18 U.S.C. § 641,20 which prohibits the conversion, theft, sale,
or disposal without authorization of any “thing of value” of the United States. A
person who steals government property or receives stolen property knowing it to
have been stolen can be fined under Title 18 or imprisoned for not more than ten
years, or both; but if the value of the property does not exceed $1,000, the person
shall be fined under Title 18 or imprisoned not more than one year, or both. In
addition, 18 U.S.C. § 2112 provides that whoever robs or attempts to rob another of
any kind of personal property belonging to the United States, shall be imprisoned not
more than fifteen years.
Mineral Laws
Although at first glance it appears that the federal mining and mineral laws do
not apply to fossils, this conclusion may not be warranted.
The Materials Act of 194721 provides for the sale and disposal of common
mineral materials from public lands by the Secretary of the Interior and from national
forests and certain other lands managed by the Secretary of Agriculture. In 1955,
Congress provided that certain common varieties of certain minerals would be
disposed of under the 1947 act. The mining laws provide for the development of
“locatable” or hardrock minerals, such as gold, silver, copper, etc. Other minerals,
such as coal, oil, and gas, may be developed through leases with the federal
government. In 1955, Congress removed certain mineral materials from the
operation of the mining laws and provided that they be disposed of under the
separate system for disposal of mineral materials.22 A 1962 act specified that
“petrified wood” (i.e. mineralized vegetative material) is not a valuable mineral
deposit within the meaning of the mining laws.23 The relevant committee reports on
19Pub. L. No. 93-291, 88 Stat. 174, 16 U.S.C. §§ 469a — 469c-2.
20Act of June 25, 1948, ch. 645, 62 Stat. 725, as amended.
21Act of July 31, 1947, ch. 406, 61 Stat. 681, codified at 30 U.S.C. § 601 et seq.
22Act of July 23, 1955, ch. 375, 69 Stat. 368.
23Act of September 28, 1962, Pub. L. No. 87-713, 76 Stat. 652, 30 U.S.C. § 611. The 1962
(continued...)

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the 1962 Act indicate that the Solicitor of the Department of the Interior had
concluded that petrified wood was locatable under the mining laws, and that
Congress intended the 1962 legislation to eliminate petrified wood from the
operation of the mining laws. Congress was concerned because the mining laws
provide easy access to locatable minerals and some destructive methods, such as the
use of “tractor plows,” were being used to uncover deposits.24
The mining laws, principally the Mining Act of 187225 allow the development
and patenting of lands containing valuable locatable minerals. One could argue that
if petrified wood — mineralized vegetative material — can be disposed of under the
Materials Act and was previously regarded as a locatable mineral, then perhaps
common fossils — mineralized animal matter — may also be disposed of under the
materials law, with more valuable fossils being locatable under the Mining Act.
The regulations of the BLM and FS recognize petrified wood as a disposable
material, but do not address fossils.26 The regulations of BLM (the agency with
management responsibility for development of onshore federal minerals) on
locatable minerals also do not address fossils.27 No published opinions of the
Solicitor of the Department of the Interior or the Attorney General could be found
on this issue, and no court cases on whether fossils are locatable minerals under the
mining laws. One 1915 Department of the Interior administrative case found fossils
not to be locatable minerals on the grounds that they did not meet the usual tests, in
that they are not: recognized as mineral by standard authorities; classified as a
mineral product in trade or commerce; or a substance that possesses economic value
for use in trade, manufacture, the sciences, or in the mechanical or ornamental arts.28
Trespass
In addition to any recourse the United States may have under particular statutes,
the United States may also protect its property by bringing a trespass action for
unauthorized use of its lands and resources.29 Such suits would enable the United
23(...continued)
amendment defined “petrified wood” as used in that act and in the 1947 act, but the earlier
act did not use the term. It appears from the committee reports that Congress intended
petrified wood to be disposed of as a material.
24H.R.Rep. 2056, 87th Cong., 2d Sess. (1962) and S. Rep. 2037, 87th Cong., 2d Sess. (1962).
25Act of May 10, 1872, ch. 152, 17 Stat. 91, codified at 30 U.S.C. §§ 22 et seq.
26See 43 C.F.R. part 3600 and 36 C.F.R. §§ 228.40 - 228.67.
2743 C.F.R. 3812.1 defines locatable minerals as any recognized as such “by the standard
authorities.”
28Earl Douglass, 44 Pub. Lands Dec. 325 (1915).
29United States v. West, 232 F. 2d 694 (9th Cir. 1956), cert. denied 352 U.S. 834; Shannon
v. United States, 160 F. 870 (9th Cir. 1908).

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States to both restrain trespasses and to recover the reasonable value of the use of
public land unlawfully appropriated.30
With these general statutes in mind, the following material discusses the
particular agencies and their regulations.
Agency-Specific Statutes
National Park Service
One of the primary duties of the NPS is the protection of National Park System
resources. The NPS is to “promote and regulate the use of the Federal areas known
as national parks ... to conserve the ... natural and historic objects and wild life (sic)
therein and to provide for the enjoyment of the same in such manner and by such
means as will leave them unimpaired for the enjoyment of future generations.”31
Therefore, NPS regulations can provide for the protection of park resources. One
regulation provides:
Except as otherwise provided in this chapter, the following is prohibited: ...
(1) Possessing, destroying, injuring, defacing, removing, digging, or disturbing
from its natural state:
...
(iii) Nonfossilized and fossilized paleontological specimens, cultural or
archeological resources, or the parts thereof ....32
The taking of some “natural products” for personal use is allowed under 36
C.F.R. §2.1(c), but this section begins by referring only to certain “fruits, berries,
nuts, or unoccupied seashells” which may be gathered, and arguably the taking of
fossils is not included here. The taking of “research specimens” of “plants, fish,
wildlife, rocks, or minerals” may be allowed under 36 C.F.R. §2.5. Fossils are not
expressly mentioned here, but may be included.
The penalties for violation of the regulations in part 2 vary depending on the
type of National Park System unit and the degree of intent. The regulations are
somewhat anomalous in that a knowing and willful violation may receive a lesser
punishment than one that is not. The penalties stated in 36 C.F.R. § 1.3 are:
(a) A person convicted of violating a provision of the regulations contained
in Parts 1 through 7 ... within a park area not covered in paragraphs (b) or (c) of
this section, shall be punished by a fine as provided by law, or by imprisonment
not exceeding 6 months, or both, and shall be adjudged to pay all costs of the
proceedings.
30Utah Power & Light Co. v. United States, 230 F. 328 (8th Cir. 1915), modified on other
grounds, 242 F. 924 (8th Cir. 1917).
3116 U.S.C. §1.
3236 C.F.R. §2.1(a).

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(b) A person who knowingly and willfully violates any provision of the
regulations contained in parts 1 through 5, 7 and 12 of this chapter, within any
national military park, battlefield site, national monument, or miscellaneous
memorial transferred to the jurisdiction of the Secretary of the Interior from that
of the Secretary of War by Executive Order No. 6166, June 10, 1933, and
enumerated in Executive Order No. 6228, July 28, 1933, shall be punished by a
fine as provided by law, or by imprisonment for not more than 3 months, or by
both.

There are also special regulations for many park units in 36 C.F.R., Part 7, but
none of these contain provisions on fossils. Other local regulations may be provided
at particular park units and individual management plans are developed for each park
unit, which plans may address fossil removal.
Bureau of Land Management
The Bureau of Land Management is relevant to a discussion of paleontological
resources for two reasons: it is a significant land managing agency and also is the
manager of the onshore minerals of the United States. The principal statute
governing the management of the federal public lands by the BLM is the Federal
Land Policy and Management Act (FLPMA).33 This statute does not specifically
address fossils, but permits protection of fossils in several respects. One of the
management policies required by FLPMA is to manage the lands in a manner that
will “protect the quality of scientific, scenic, historical, ecological, environmental,
... and archeological values: that, where appropriate, will preserve and protect certain
public lands in their natural condition ....34 Also, the Secretary of the Interior is to
issue regulations on the management, use, and protection of the public lands, the
violation of which is punishable as a criminal offense,35and “regulations and plans
for the protection of public land areas of critical environmental concern” are to be
promptly developed.36 In addition, the Secretary of the Interior is to “take any action
necessary to prevent unnecessary or undue degradation of the lands.”37 These duties
typically are carried out through land use plans for particular areas. As part of the
planning process, FLPMA permits protection of fossil resources through the required
inventory and planning processes or through protective designations for particular
areas, such as research natural areas or areas of critical environmental concern.
Authority for the disposal of fossil resources is less clear than is the authority
of the agency to protect such resources. FLPMA authorizes the Secretary to regulate
the use, occupancy, and development of the public lands and this general authority
might provide a basis to permit the collection of fossils. The intended authority with
respect to this important resource could be clarified.

33Pub. L. No. 94-579, 90 Stat. 2744, codified at 43 U.S.C. §§1701 et seq.
3443 U.S.C. §1701(8).
3543 U.S.C. § 1733.
3643 U.S.C. §1701(11).
37 43 U.S.C. §1732(b).

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Current BLM regulations that regulate “rules of conduct” on the public lands
prohibit, unless otherwise authorized, the removal or destruction of “any scientific,
cultural, archaeological or historic resource, natural object or area.”38 Collection of
“common invertebrate fossils” for noncommercial purposes is allowed.39 Non-
commercial disposal of mineral materials is listed separately, as though fossils are
not to be regarded as mineral materials.40 Collection of nonrenewable resources for
commercial purposes may be done only after obtaining a contract or permit from an
authorized officer under the regulations on mineral materials disposal.41 If fossils are
not to be regarded as mineral materials, then this authorization for commercial
disposal would not apply. There are no specific penalties in the regulations for
violation of these rules.
No regulations have yet been adopted for subpart 8363 on “Resource and visitor
protection” or for subpart 9268.2 “Natural history resource management procedures.”
Additional BLM rules may be posted at local sites affected.42 State and local
laws also may apply and may be enforced by the appropriate state and local
authorities.43 There also are separate regulations relating to the gathering of fossils
from within the Fossil Forest Research Natural Area, New Mexico.44
Although FLPMA in 43 U.S.C. § 1733(a) authorizes the Secretary to
promulgate regulations for the management, use, and protection of the public lands
and provides statutory penalties for violations of such regulations, the penalty
sections in the regulations apply only to violations of part 9260 and do not include
the only FLPMA-related regulations that address fossil removal.45 However,
FLPMA also provides in § 1733(g) that the use of any portion of the public lands
contrary to any regulation or order is unlawful and prohibited, so the statutory
penalties set out in § 1733(a) appear to apply regardless of the omission of penalties
3843 C.F.R. § 8365.1-5(a)(1).
3943 C.F.R. § 8365.1-5(b)(2).
4043 C.F.R. § 8365.1-5(b)(4).
4143 C.F.R. § 8365.1-5(c).
4243 C.F.R. § 8365.1-6.
4343 C.F.R. s 8365.1-7.
4443 C.F.R. § 8224. Gathering activities are allowed by special permits which may only be
issued to institutions and individuals engaged in research, museum, or educational projects
approved by the authorizing officer. Willful violations of these regulations relating to
collection of petrified wood, motorized use, or paleontological resources are punishable by
a fine of not more than $1,000 or imprisonment of not more than 12 months or both. Any
person who willfully and without authorization collects or removes paleontological resources
whose value is greater than $100 for which a permit was required shall be subject to a fine
not to exceed $10,000, or imprisonment not to exceed 10 years, or both. Note, however, that
these regulations apply to this specific area.
4543 C.F.R. § 9262.1.

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in the implementing regulations.46 These statutory penalties are that any person who
knowingly and willfully violates a lawfully issued regulation shall be fined no more
than $1,000 or imprisoned no more than twelve months or both.
A BLM representative has indicated that draft regulations on paleontological
resources have been developed and may be proposed in the next few months.
In summary, BLM appears to have authority to protect fossil resources on the
public lands under FLPMA, but agency regulations do not expressly provide this
protection at present time. The Antiquities Act may also provide additional authority
for fossil protection either if fossils are viewed as “objects of antiquity” the removal
of which can be regulated, or if it is argued that the agency can protect fossil
resources to preserve them for possible presidential designation as a national
monument. But, as mentioned previously, a court case has cast some doubt on the
efficacy of the Antiquities Act as the basis for criminal enforcement actions.
Authority for the disposal of fossils by BLM is less clear. Permits for the
collection of fossils can be issued under the Antiquities Act. Permits may be
authorized under the general management authority of BLM to regulate development
of the public lands. Fossils may be a mineral material that can be sold under the
Mineral Materials Act, but this is not stated in the statute or regulations and the
structure of 43 C.F.R. § 8365(b)(2) and (4) lends support to the interpretation that
fossils are not mineral materials. Fossils may be locatable minerals under the mining
laws, but again this is far from clear and one administrative case concluded that
fossils did not meet the tests for locatable minerals. An agency representative has
indicated that BLM may publish proposed regulations on paleontological resources
soon.
Forest Service
The principal statutes governing the management of the national forests are the
Organic Act,47 the National Forest Management Act (NFMA),48 and the Multiple Use
Sustained Yield Act,49 none of which expressly mention fossils. The NFMA and
Multiple Use Sustained Yield Act address timber production and other “multiple
uses” of the forests, which are referred to as involving “various renewable surface
resources,”50 and arguably might not include fossils.
The Organic Act establishes the purposes of national forests as including the
protection of the forest,51 and the Secretary of Agriculture is authorized to regulate
46BLM recently issued proposed regulations to consolidate prohibitions and penalties, 61
FED. REG. 57605 (November 7, 1996). These were later withdrawn in March, 1997.
47 Act of June 4, 1897, ch. 2, 30 Stat. 34, codified 16 U.S.C. §§473 et seq.
48 Pub. L. 94-588, 90 Stat. 2949, codified at 16 U.S.C. §§1601 et seq.
49 Pub. L. No 86-517, 74 Stat. 215, codified at 16 U.S.C. §§528 et seq.
50 16 U.S.C. §531(a).
51 16 U.S.C. §§ 475, 551.

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the use and occupancy of the forests.52 This broad authority is similar to that of BLM
under FLPMA. A violation of a law or regulation related to the forests is punishable
by a fine of not more than $500 or imprisonment for not more than 6 months or both.
The NFMA requires a multidisciplinary approach to planning for each forest unit,
based on the resources of each forest.53 Other statutes may also apply, depending on
whether the forest in question was reserved from the public domain or was acquired
under various acts. As a result, there may be differences in management authority
with respect to fossils.
FS regulations provide for the disposal of mineral materials, citing many
governing statutes pertaining to both public domain forests and National Forest
System lands acquired under various statutes. Therefore, the issue of whether fossils
are to be regarded as mineral materials, or locatable minerals, or mineral resources
at all, as discussed above in the BLM section, is relevant to Forest Service managed
lands as well. Because BLM is the onshore mineral managing agency for the federal
government, if fossils are a locatable mineral resource, their preservation or disposal
on public domain national forests would be managed by BLM, with the FS as the
manager of the surface. If fossils are to be regarded as mineral materials, the FS
could manage their sale and disposal. If fossils are neither locatable minerals nor
mineral materials, it is not clear what the authority for their disposal from national
forest lands is.
As noted, the Antiquities Act regulations in 43 C.F.R. § 3 apply to FS lands and
may provide authority for protection of fossils, as discussed above. The general
regulations of the Department of Agriculture on enhancement, protection, and
management of the cultural environment define “cultural resources (heritage
resources)” as including “objects” from the past.54 In 1979 the FS proposed changes
to the FS Manual to elaborate on and implement the departmental cultural
regulations that stated: “Paleontological resources also are considered to fall within
the authority of [the Antiquities Act].”55 This Manual guidance was never finalized
and is still in the process of being redrafted.
Other current FS regulations do not expressly address removal of
paleontological objects or natural products. Special use permits issued under the
regulations of the FS may encompass the removal of fossils, but it is not clear what
authority exists for such disposal aside from the general authority to regulate the use
of the forests, the permitting authority of the Antiquities Act or possibly the
Materials Act, or the general management authority of the FS.56
5216 U.S.C. § 551.
53 16 U.S.C. §1604.
547 C.F.R. part 3100, 3100.42.
5544 FED. REG. 54268, 54269 (September 18, 1979).
56 36 C.F.R. §251.50.

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Department of Defense
Because access to defense lands is much more restricted than is access to parks
or multiple use lands, managers are less likely to have to deal with fossil collection
and vandalism problems. Neither statutory provisions relating to fossils on DOD
lands, nor any general regulations that specifically address fossils could be
identified.57 However the discussion of the Antiquities Act and regulations discussed
above apply to military reservations.58 In addition, Army Regulations draw upon the
authority to survey and protect scientific resources contained in the Archaeological
and Historic Preservation Act to include paleontological resources as part of the
“Integrated Cultural Resources Management Plans”59 that in turn are integrated into
land management plans for defense installations.
There also are regulations for the sale of mineral materials and the development
of locatable minerals on DOD lands,60 so the issues and ambiguities discussed above
with respect to those topics also pertain.
57 In addition to the general Antiquities Act regulations at 43 C.F.R. part 3, there are Army
regulations for environmental quality at 32 C.F.R. Part 650. These primarily address
pollution control issues, but 32 C.F.R. §650.5 states that [h]istoric and cultural sites,
structures, and objects under Army jurisdiction will be preserved, restored, and maintained
for the benefit and enjoyment of future generations.” (Emphasis added.) This regulation
seems to emphasize historical objects rather than paleontological ones, but might permit
regulation of fossils. Item (10) of the same regulation states: “An integrated, multiuse,
natural resource, land management program will be conducted for forests and woodlands,
fish and wildlife, open space, soil, water, vegetation, outdoor recreation, natural beauty, and
increased public access and nonconsumptive utilization on lands under Army jurisdiction
within the provisions of AR 405-80 and AR 420-74.” This language could permit the
protection of fossil deposits, but could be more express.
5843 C.F.R. part 3.
59Section 2-6b of Army Regulation 200-4, Cultural Resources Management, Summary of
Changes, October 30, 1997 (a draft regulation that is expected to be finalized soon) states:
“Paleontological resources are scientifically significant fossilized remains, specimens,
deposits and other such data from prehistoric, non-human life. The AHPA specifically
provides for the survey and recovery of scientifically significant data which may be
irreparably lost as a result of any alteration of the terrain from any federal construction
projects, or federally licensed project, activity, or program. Any installation paleontological
resource management requirements will be integrated into ICRMPs and will establish and
include installation policy for limitation of collection and removal of paleontological
resources. Known paleontological resources will also be addressed in any NEPA
documentation prepared for actions that may impact or cause irreparable loss or destruction
of such resources.”
6032 C.F.R. Part 189.

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General Penalties
There are general federal criminal penalty provisions that are relevant to all the
agencies. The general statutory penalty provisions for theft or conversion of federal
property is a fine or imprisonment for not more than 10 years, or both. However, if
the value of the property involved is $100 or less, the penalty is a fine or
imprisonment for not more than one year, or both.61
Other general provisions provide for a range of maximum fines. Although other
substantive sections of the United States Code may set out offenses and provide
fines, usually these fines are lower than the fines available under the general
sections. Under 18 U.S.C. § 3571, the maximum fine available shall be the highest
amount of several alternatives stated, only one of which is the amount stated in the
law setting forth the offense. If the amount available under § 3571 is higher than the
amount set in the substantive section, the higher amount governs unless language is
specifically included in the substantive section to exclude the operation of the
general fines section.62 The sections discussed earlier in this report that punish
violations of regulations, etc. have not been amended to exclude the operation of the
general penalties section.
In general, the range of fines for a violation by an individual would likely be
from $5,000 to $100,000, depending on which statute is used to charge the
offender.63 However, another general provision indicates that if an individual derives
6118 U.S.C. § 641.
6218 U.S.C. § 3571(e).
6318 U.S.C. § 3571(b) provides that an individual who has been found guilty of an offense
may be fined not more than the greatest of —
(1) the amount specified in the law setting forth the offense; [but see subsection (e) of
this section for times when the specified amount is the maximum penalty]
(2) the applicable amount under subsection (d) of this section;
(3) for a felony, not more than $250,000;
(4) for a misdemeanor resulting in death, not more than $250,000;
(5) for a Class A misdemeanor that does not result in death, not more than $100,000;
(6) for a Class B or C misdemeanor that does not result in death, not more than $5,000;
or (7) for an infraction, not more than $5,000.
18 U.S.C. § 3559 classifies offenses according to the maximum incarceration available:
a Class A misdemeanor is one for which the potential prison sentence is one year or
less, but more than six months;
a Class B misdemeanor is one for which the potential prison sentence is six months or
less, but more than thirty days;
a Class C misdemeanor is one for which the potential prison sentence is thirty days or
less but more than five days; and
an infraction is one for which five days or less or no imprisonment is authorized.

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pecuniary gain from the offense, the fine assessed could be twice the gross amount
of gain.64 This could result in a higher fine than otherwise would apply.
Summary
In summary, although particular statutes or executive actions may protect
particular areas, and although current general laws and regulations appear to permit
the protection of paleontological resources on federal lands, we are aware of no
general statute that expressly directs protection of such resources. The NPS is
directed to protect National Park System resources and both the FS and BLM have
general authority to protect resources managed by them and to regulate the use and
occupancy of those lands. Available protection may vary depending on whether the
federal lands in question were or are a part of the public domain or were acquired
under various authorities. DOD has much greater control over access to and use of
DOD lands than do the multiple use agencies. The Antiquities Act applies to all the
agencies, clearly covers paleontological resources in some respects, but is ambiguous
in others; and there is some question as to whether it is unconstitutionally vague as
a basis of criminal prohibitions and penalties. The general theft provisions and
trespass actions are also available to protect fossil resources on federal lands.
Aside from the permits authorized under the Antiquities Act, authority for
agencies to allow the collection and disposal of fossils is less clear than is their
authority to protect them; and the mining and mineral disposal laws are ambiguous
as to their application to paleontological resources.
Specific penalties associated with the provisions establishing offenses typically
are quite low relative to the market and scientific value of many fossils, and these
penalty provisions typically have not been amended since the enactment of general
criminal fines provisions. Absent specific language specifying otherwise, the general
fine provisions make higher maximum fines available.
Because of the lack of clarity, uniformity, and consistency among the agencies
and laws on the issues of protection and regulation of paleontological resources on
the federal lands, some have suggested that additional analysis from the relevant
agencies65 and possible express legislative direction on these issues might be
valuable.
6418 U.S.C. § 3571(d) states that if “any person derives pecuniary gain from the offense, or
if the offense results in pecuniary loss to a person other than the defendant, the defendant
may be fined not more than the greater of twice the gross gain or twice the gross loss, unless
imposition of a fine under this subsection would unduly complicate or prolong the
sentencing process.”
65One committee report on an appropriations bill for the Department of the Interior requests
additional agency information. See S.Rept. 105-227 at 60 (1998), accompanying S. 2237.

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