An Overview of S. 263, the Paleontological Resources Preservation Act: Fossil Resources Located on Federal Lands

An Overview of S. 263, the Paleontological Resources Preservation Act: Fossil Resources Located on Federal Lands

Order Code RS22152
May 20, 2005
CRS Report for Congress
Received through the CRS Web
An Overview of S. 263, the Paleontological
Resources Preservation Act:
Fossil Resources Located on Federal Lands
name redacted
Legislative Attorney
American Law Division
Summary
About 30% of the land in the United States is controlled by federal land managers
through several different federal agencies. Much of this land contains valuable
paleontological [fossil] resources. There is no comprehensive management policy or
statute for the management or the protection of paleontological resources located on
federal lands. Current, management authority derives from certain resource protection
statutes, from general criminal theft statutes concerning the theft of government
property, and from certain site-specific statutes. Congress has considered legislation to
provide for uniform federal fossil management and protection authority. In the 108th
Congress, S. 546, the “Paleontological Resources Preservation Act” was passed by the
Senate, but was not passed by the House. In the 109th Congress, S. 263 has been
introduced and reported by the Committee on Energy and Natural Resources. S. 263
incorporates many of the provisions of S. 546.
Introduction and Background. Scholars, dealers in rare objects, and legislators,
alike, have shown increasing interest in paleontological [fossil] resources. Large tracts
of federal lands possess valuable fossil resources,1 and some are concerned that current
law is inadequate to protect and manage these federal resources properly.
There is no comprehensive management policy or statute for the management and
protection of fossil resources on federal lands. Such management authority that now
exists may be derived from statutes dealing with the protection of public properties and
from statutes related to the protection of specific sites.2 For example, the Antiquities Act
1 Many of these resources remain unexcavated. See, generally, Fossils on Federal and Indian
Lands, May 2000. Prepared at the request of Congress by several consulting federal agencies.
The report is available online at [http://www.fs.fed.us/geology/fossilreport.htm].
2 See CRS Report RL32586, Paleontological Resources Protection Act: Proposal for the
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Congressional Research Service ˜ The Library of Congress

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of 19063 has limited application to the protection of fossil resources. The Archeological
and Historic Preservation Act of 19744 also may have some limited applicability to fossil
management and protection. The Archaeological Resources Protection Act of 19795
specifically excludes paleontological resources from its definition of archaeological
resources, and may have very limited application to fossil protection and management.
The Federal Cave Resources Protection Act6 may provide for some protection if the fossil
resource is located within the context of a protected “cave resource.” A related issue is
that there are not consistent statutory or regulatory definitions for such key terms as
“fossils,” “paleontologial resources,” “federal lands,” and related terms.
The general criminal theft provisions of 18 U.S.C. § 641, which prohibit the
conversion, theft, sale, or disposal without authorization of anything of value belonging
to the United States, may be applied to the unauthorized removal of fossils from federal
lands.7 A person who steals government property or receives stolen property knowing
that it has been stolen can be fined under Title 18, imprisoned for up to ten years, or both.
In addition, it may be possible to protect fossil resources by bringing a trespass action for
the unauthorized use of lands and resources. Certain federal statutes address specific
types of trespass and provide for associated penalties.8 Only a few reported cases have
dealt with fossil resources located on federal lands and related issues. The cases do not
provide a consistent or a dispositive analysis of the applicability of existing federal
preservation laws to fossil resources.9
Several federal agencies have management authority for the protection of fossil
resources on lands under their jurisdiction. Four agencies within the Department of the
Interior exercise such authority: Bureau of Land Management, Bureau of Reclamation,
Fish and Wildlife Service, and National Park Service. The U.S. Forest Service, an agency
of the Department of Agriculture, has certain fossil management duties. In addition, the
U.S. Geological Survey has the responsibility for inventorying certain federal lands and
resources. The Department of Defense and the Smithsonian Institution also have some
2 (...continued)
Management and Protection of Fossil Resources Located on Federal Lands, by (name redact
ed) at 3-6 for a discussi
on of the various statutes.
3 Act of June 8, 1906, ch. 3060, 34 Stat. 225 (1906), codified at 16 U.S.C. §§ 431 to 432.
4 P.L. 93-291, 88 Stat. 174 (1974), codified at 16 U.S.C. §§ 469 to 469c-2.
5 P.L. 96-96, 93 Stat. 721 (1979), codified at 16 U.S.C. §§ 470AA to 470mm.
6 P.L. 100-691, 102 Stat. 4546 (1988), codified at 16 U.S.C. §§ 4301 to 4310.
7 See CRS Report RL32586 at 5-6.
8 Id.
9 Id. at 9.

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fossil management responsibilities.10 The enforcement and prosecution policies of the
various agencies differ greatly.11
Legislation. In May 2000, the Secretary of the Interior released a comprehensive
report concerning the management of fossils which are located on federal and Indian
lands.12 The report, prepared at the request of Congress, is considered to be the
authoritative study of fossils on these lands. It has served as an impetus for federal
legislation. The report outlined seven principles for the effective management of fossils
which are located on federal land.13
Fossil management and protection legislation was introduced and considered in the
107th and 108th Congress.14 In the 108th Congress, S. 546, the Paleontological Resources
Preservation Act passed the Senate and was referred to the House Resources and
Agriculture Committee. No further action was taken.15
In the 109th Congress, new legislation — S. 263, the Paleontological Resources
Preservation Act16 — was introduced by Senator Akaka and incorporates many of the
provisions of S. 546. The bill was amended and favorably reported by the Senate
Committee on Energy and Natural Resources on March 11, 2005. Following is a
summary of the provisions of S. 263, as reported.
Section 1 titles the bill as the “Paleontological Resources Preservation Act” (“Act”).
Section 2 defines the terms “casual collecting,” “Secretary,” “federal lands,” “Indian
Lands,” “State,” and “paleontological resource.” The “casual collecting” definition
provides a noncommercial exception to allow for the random collection of fossil materials
from certain federal lands.
Section 3 directs the Secretaries of Interior and Agriculture to manage and protect
paleontological resources on federal land, and to develop plans for inventorying and
monitoring such resources.
10 For a discussion of federal agency authority, policies, and practice, see CRS Report RL32667,
Federal Management and Protection of Paleontological (Fossil) Resources Located on Federal
Lands: Current Status and Legal Issues, by (name redacted).
11 Id. at 13-14 for a description of the policies and practices of the National Park Service.
12 See CRS Report RL32586 at 6-8.
13 Id.
14 Id. at 10.
15 Id.
16 109th Cong., 1st Sess. (2005). The bill was introduced and referred to the Committee on Energy
and Natural Resources (“Committee”) on February 2, 2005. On March 11 2005, the bill was
reported out of the Committee with amendments by Senator Domenici and there was a written
report (No. 109-36). Also on March 11, the bill was placed on the Senate Legislative Calendar
under General Orders (Calendar No. 50).

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Section 4 mandates that the Secretaries are to establish a program to increase public
awareness concerning the significance of paleontological resources.
Section 5 deals with the collection of paleontological resources. Section 5(a)
provides that paleontological resources may not be collected from federal lands without
a permit issued by the Secretaries, except that in certain circumstances casual collecting
may be allowed. Permits issued prior to the enactment of this act will not be affected.
Section (b) states the criteria by which a permit may be issued. Section 5(c) states the
terms and conditions contained in a permit issued by the Secretaries. Section 5(d)
authorizes the Secretaries to modify, suspend, or revoke a permit for certain
considerations or violations. Section 5(e) authorizes the Secretaries to restrict access to
or close areas under the Secretaries’ jurisdiction to the collection of paleontological
resources.
Section 6 provides that any paleontological resource, and associated data and
records, collected under a permit shall be deposited in an approved repository. Also, the
Secretaries are authorized to enter into agreements with non-federal repositories.
Section 7 deals with prohibited acts and criminal penalties. Section 7(a) provides
that a person may not (1) excavate, remove, or damage any paleontological resource on
federal lands, unless such action is in accordance with the act; (2) exchange, transport,
export, or receive any paleontological resource, if the person knew or should have known
that such resource was excavated or removed from federal land in violation of federal law
and the act; or (3) sell or purchase any paleontological resource if he/she knew or should
have known that such resource was excavated or removed from federal land in violation
of Federal law and the act. Section 7(b) prohibits a person from making or submitting
any false record, account, or label for, or any false identification of, any paleontological
resource excavated or removed from federal lands. Section 7(c) provides penalties. A
person who violates or counsels, procures, solicits, or employs another to violate
subsections (a) or (b) shall, upon conviction, be fined in accordance with 18 U.S.C., or
imprisoned not more than ten years, or both. If the sum of the commercial and
paleontological value of the resources involved and the cost of restoration and repair of
such resources does not exceed $500, such person shall be fined in accordance with 18
U.S.C., or imprisoned not more than one year, or both. Section 7(d) provides a general
exception for paleontological resources in the lawful possession of persons prior to the
date of the act’s enactment.
Section 8 describes civil penalties associated with prohibited acts. Section 8(a)
provides that a person violating any prohibition in a regulation or permit may be assessed
a penalty by the Secretaries after the person is given the opportunity for a hearing. The
amount of a penalty is to be based on the scientific or fair market value of the
paleontological resource; the cost of response, restoration and repair of the resource and
the site involved; and any other relevant actors. In the event of subsequent offenses, the
assessed penalty may be doubled. The amount of the penalty is not to 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. Section 8(b) provides for judicial review and collection of
unpaid assessments. A person against whom an order assessing a penalty is issued may
file a petition for judicial review of the order in the U.S. District Court of the District of
Columbia or in the district which the violation is alleged to have occurred. The court is

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to hear the action on the record made before the Secretary and sustain the action if it is
supported by substantial evidence on the record considered as a whole. Provision is made
if a person fails to pay a penalty assessed under this section within 30 days. Section 8(c)
provides that hearings held pursuant to these proceedings are to be conducted in
accordance with Administrative Procedures Act. Section 8(d) provides for the use of
penalties collected under this section. Such penalties may be used only to protect, restore,
or repair paleontological resources and sites that were the subject of the action and related
issues; to provide educational materials to the public about paleontological resources and
sites; and to pay rewards.
Section 9 deals with rewards and forfeiture. The Secretaries may pay rewards to any
person who furnished information leading to the finding of a civil violation, or the
conviction of a criminal violation. The section establishes forfeiture authority and
provides for the transfer of seized paleontological resources to federal or non-federal
educational institutions to be used for scientific or educational purposes.
Section 10 protects information concerning the nature and specific location of
paleontological resources, unless the Secretaries determine that the disclosure would
further purposes of the act, not create a risk of harm to or theft or destruction of the
resource, and be in accordance with other applicable laws.
Section 11 directs the Secretaries to issue regulations as appropriate to carry out this
act, providing opportunities for public notice and comment.
Section 12 provides for several savings provisions to clarify that the act does not
interfere with or restrict the listed laws and activities.
Section 13 authorizes the appropriations of such sums as may be necessary to carry
out the act.
Conclusion. Although the public lands of the United States are richly endowed
with fossil resources, there is limited authority for the uniform management and
protection of these resources. Several federal agencies manage fossil resources through
the utilization of various federal laws and regulations.
In response to the issue of fossil protection on federal lands, Congress has considered
various legislative measures over the years. In the 109th Congress, S. 263, the
“Paleontological Resources Preservation Act” has been introduced. The bill proposes to
establish a comprehensive national policy for the preservation and management of
paleontological resources on federal lands administered by the Secretary of the Interior
and the Secretary of Agriculture. The bill provides definitions, collection guidelines, and
criminal and civil penalties for the management of these resources.

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