STATEMENT OF CHRISTOPHER KEARNEY, DEPUTY ASSISTANT SECRETARY FOR
POLICY, MANAGEMENT AND BUDGET, DEPARTMENT OF THE INTERIOR, BEFORE THE
SUBCOMMITTEE ON NATIONAL PARKS, HISTORIC PRESERVATION, AND RECREATION SENATE
COMMITTEE ON ENERGY AND NATURAL RESOURCES CONCERNING S. 2727, THE
PALEONTOLOGICAL RESOURCES PRESERVATION ACT.
Mr. Chairman, thank you for the opportunity
to present the Department of the Interior’s views on S. 2727. The Department supports the purpose of S.
2727 to protect paleontological resources on federal lands, but would like an
opportunity to more fully review the bill.
We have some general concerns about some of the legislative provisions
and would like to follow up in writing with specific recommendations to address
these issues.
S. 2727 adopts the recommendation of a report
submitted to Congress in May 2000, titled “Fossils on Federal and Indian Lands”
(the Interagency Fossil Report).
Concerned about the lack of unified policies and standards for the
management of fossils on federal lands and the resulting deterioration and loss
of fossils, Congress directed the Bureau of Indian Affairs, the Bureau of Land
Management, the Bureau of Reclamation, the Fish and Wildlife Service, the
Forest Service, the National Park Service, the Smithsonian Institution and the
U.S. Geological Survey to develop a report assessing the need for a unified
federal management policy. During
development of the report, three major themes emerged from the public comments
received. First, a majority of people
who commented viewed fossils on federal lands as part of America’s
heritage. Second, they recommended that
vertebrate fossils continue to be protected as rare and within the ownership of
the federal government. Third, they
supported the involvement of amateurs in the science and enjoyment of fossils,
including the continuing availability of most plant and invertebrate fossils
for recreational collection on lands managed by the Bureau of Land Management
and the Forest Service. To meet these
and other goals, the report recommended the establishment of a framework for
fossil management, analogous to the Archeological Resources Protection Act of
1979 (ARPA).
Fossils are non-renewable resources which,
with the exception of microfossils and those that make up
commercially-developed minerals, such as coal, oil, and gas, are relatively
rare and have significant scientific, educational and recreational values. Federal lands, the majority of which are in
the western part of the United States, contain a rich array of plant,
invertebrate and vertebrate fossils.
For more than a century, land management agencies have managed fossils
within their unique missions. These agencies
have protected all vertebrate fossils, requiring permits for their excavation
and removal, with the stipulation that the resources remain in federal
ownership in perpetuity.
In recent years, public interest in fossils
has grown rapidly and with this interest, the commercial value of fossils also
has increased. The unfortunate
consequence has been a loss of fossils from federal lands, through theft and
vandalism, and from the United States itself, through international
trafficking. These crimes reduce
scientific and public access to scientifically significant and instructive
fossils and destroy the contextual information critical for interpreting the
fossils.
S. 2727 would provide a unified federal
policy to ensure that scientifically significant fossils on certain federal
lands are inventoried, monitored, protected, and curated consistently, while
accommodating the agencies’ distinct missions.
As we understand it, the bill, in large measure, reflects the current
practice of agencies in the management of fossils on federal land. Streamlining the practices of the various land
management agencies into a unified approach will enhance overall management of
fossils on federal lands by reducing
public confusion and improving collaboration and cooperation among
agencies, scientists, and the public.
Under the agencies’ existing regulations and
policies, vertebrate fossils may only be collected with a permit for scientific
and educational purposes. S. 2727 would
codify this collection policy and standardize the permitting requirements among
the various agencies, as recommended in the Interagency Fossil Report. It would ensure that these fossils are
retained as public property and curated in suitable repositories for current
and future generations of scientists and the public to study and enjoy. Scientists use the information from
specimens in repository collections to build on our understanding of the
history of life on Earth. Millions of
visitors enjoy the displays offered by public repositories of their most
spectacular and educational fossils, many originating from federal lands.
One exception to the permitting requirements
under S. 2727 is for casual collection of certain paleontological resources for
scientific, educational and recreational uses.
This important exception would authorize the Secretary to allow the
public to casually collect common invertebrate and plant fossils without a
permit on certain federal lands. The
casual collection of such fossils can be an important component of the public’s
enjoyment of some federal lands and is generally consistent with scientific and
educational goals.
S. 2727 would codify the land managing
agencies’ existing prohibition on commercial fossil collecting from federal
lands. By prohibiting such collecting,
this legislation ensures that vertebrate fossils on federal lands, a rich part
of America’s heritage, remain in public hands, that they not be bought or sold,
and that the federal government not have to use taxpayer funds to purchase
fossils found on lands that it owns.
S. 2727 would provide specific protection by
prohibiting the excavation, damage, transport or sale of paleontological
resources located on federal lands.
Criminal penalties for these acts would be set by classification,
following fine and imprisonment penalties imposed under federal law.
Keeping an appropriate inventory and
monitoring are crucial components of fossil management. S. 2727 would provide the Secretary with
the flexibility to keep an inventory and monitor exposed fossils based on the
site-specific geology and paleontology of their management units. The exposure of fossils by erosion varies,
based on the type of rock in which they are found and local climate. Some fossils remain exposed at the surface
for decades or centuries, while others weather away soon after exposure
depending on the nature of their preservation.
S. 2727 would balance the need for public
access to fossils with the recognition that the unlimited disclosure of certain
information about particularly significant fossils can lead to the theft or
vandalism of those fossils. In the
National Parks Omnibus Management Act of 1998, Congress authorized the National
Park Service to withhold information about the nature and specific location of
paleontological resources in park units unless certain criteria were met. S. 2727 would extend this same authority to
the other federal land managing agencies.
As noted above, the Department has several
concerns with the bill as drafted.
First, it is not clear whether
the bill’s definition of “federal lands” was intended to include Indian
lands. While we would support legislation that addresses the management and
collection of paleontological resources on Indian lands, the framework
established by this bill is not appropriate for paleontological resources
located on Indian lands. For example,
the bill would vest with the Secretary the authority to manage and protect
paleontological resources and develop plans for keeping an inventory,
monitoring, and use of paleontological resources on federal lands. Similarly, the Secretary would be authorized
to issue permits for collection of paleontological resources or allow casual
collecting of certain resources.
Finally, the bill provides that certain paleontological resources
collected remain the property of the United States. These and other provisions do not officially recognize the
sovereign authority of Indian tribes and the role of individual Indians in
managing their own land and resources.
For this reason, the Department believes that Indian lands must be
separately defined, and a permitting and management regime must be developed
that is consistent with the principles of tribal sovereignty and the
government-to-government relationship.
We look forward to working with the Committee and Indian tribes in
crafting appropriate provisions.
The Department also would like to further
review and possibly refine several of the definitions, including the
definitions of “paleontological resource,” “casual collecting,” and
“person.” For example, we recommend deleting
the provision that specifies that paleontological resources do not include
energy minerals. This provision is
redundant of the provision in the savings provision in Section 14(1) that
states that this Act will not affect activities permitted under the federal
mineral development laws. The
definition, as written, also is confusing since energy minerals are not the
only type of developed federal mineral that could contain fossil
materials. Some minerals that are
locatable under the Mining Law of 1872 contain fossil materials, such as marble,
chemical-grade limestone, and gypsum.
The Department also disposes through sales contracts mineral materials
that may contain fossil materials.
Finally, even if the federal minerals that Congress has authorized for
development and disposal under other laws do not contain fossil materials, the
mining or development activities themselves may disturb other materials that
contain paleontological materials.
Since we understand that the purpose of the savings provision in Section
14 is to make certain that this Act will not affect federal mineral development
in any way, we strongly urge the Committee to adopt the amendments that we will
propose to clarify its intent.
In addition, the Department recommends
another amendment that would provide assurance that this Act will not affect
other uses such as federally permitted grazing and timber activities. Ensuring that federal mineral development
and certain other permitted activities are not subject to this Act should be a
critical component of this bill.
The Department would like to further review
penalty and forfeiture provisions to make certain that the system outlined in
the legislation is the best way to ensure that the Department’s goals are met
in the most efficient and effective way.
Finally, the Department suggests amending
Section 14 so that the Act does not create a third-party right of action. Such actions can be costly and duplicative
and can compromise law enforcement priorities.
Once the Department has had the opportunity
to review these and other issues in the bill, we will provide the Committee
with our suggested amendments. We look
forward to working with the Committee on this important bill.
As the prices of fossils rise, the federal
land managing agencies will be under increasing pressure to both protect
scientifically significant fossil resources and to ensure their appropriate
availability to the general public. S.
2727 would create a single legislative framework for paleontological resource
management that will facilitate sharing of resources, personnel and partnership
opportunities across agency lines.
Mr. Chairman, that concludes my statement. I would be pleased to answer any questions you or other members of the Committee may have.