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USFS Regulations and Paleontology on Federal Lands — Closing Thoughts

It’s not a popular opinion in these days of budget cuts and fiscal austerity, but I’m going to go ahead and state it anyway: We do not have enough people employed by the federal government.

Okay, let me refine that a little. We do not have nearly enough paleontologists employed in the federal system in order to adequately manage the fossil resources on federal lands. The ones who are in place are doing an excellent job with the facilities available to them, but pretty much every federally-employed paleontologist that you ask will say they need more federal paleontologists. [speaking in their personal opinions and not as a matter of Official Record, of course] That fact has vast implications for how fossil resources on public lands are managed.

This blog has been swirling with a discussion about proposed regulations for paleontological resources on US Forest Service lands. A series of posts and the associated comments present various perspectives, clarifications, and corrections from many interested parties (there was also an excellent discussion at the unofficial Society of Vertebrate Paleontology Facebook group). This is my final blog post on the topic before the close of the comment period and before I head into the field.

Trilobite--because I show too many pictures of dinosaurs. Photo by Mark A. Wilson, in the public domain.
Trilobite–because I show too many pictures of dinosaurs. Photo by Mark A. Wilson, in the public domain.

To briefly summarize, the Paleontological Resources Preservation Act (PRPA) requires that various federal agencies produce policy for the care of fossil resources under their jurisdiction. The US Forest Service (USFS) proposed regulations are the first to follow in the wake of PRPA, and as such may set a pattern for other agencies. The regulations govern such things as who may collect what, the role of museums in preserving fossils from USFS lands, permitting guidelines for fossil collection, law enforcement, and much more.

I have covered some of my evolving opinions on this topic here and here–make sure to read Matt Brown’s response with some counterarguments (and areas of agreement) here. My one deep regret about my original posts is that some gained the impression that I do not respect the work that our current federally employed paleontologists do; as already mentioned elsewhere, this is absolutely not the case. My concerns are with situations where these paleontologists may not be consulted (or where such paleontologists are not available). My other regret is that some gained the impression that I thought the rules as a whole were awful and should be trashed. Again, this was not my intent–careful readers will note I have focused only on selected areas of the rules (and also see below). As a bit of a gentle counter, I should also note that the regulations were presented for public comment. As an American citizen, I have a stake in how this issue is handled. I would be irresponsible in my citizenship if I did not comment on an issue that matters to me. Along the same lines, I fully accept that other people who care about this same issue differ in their opinions (and they may even be right where I am wrong!). Even when some have been critical of things I wrote here, I am heartened to know that they are disagreeing in good faith and out of a similar care for our country. I have learned from you, and thank you for the opportunity to have this dialogue.

So with that overly verbose preface, I will summarize a few things about the proposed regulations.

Always Look on the Bright Side of Life
A few colleagues (some of whom are paleontologists in the federal system) suggested that I have focused too much on the “bad” things about the proposed regulations, rather than acknowledging the many good aspects to the regulations. That was a mistake on my part, and so I will attempt to rectify it here with a brief comment.

All in all, the positive side of the proposed regulations is that they clarify many, many, many areas of previous confusion. The biggest aspect is in the permitting process. Speaking in general terms on the basis of conversations with colleagues who applied or attempted to apply for permits, the USFS permitting process needed an overhaul. The new rules provide for a consistent, logical, and accountable process–this is a major advance.

Many other areas–such as the designation of repositories and the repository approval process–are also generally well-crafted, and will not result in any major (or even minor) disruption to past practice and most stakeholders.

Every Silver Lining Has an Associated Cloud (and vice versa)
The hottest discussion topic in the comment threads has been the scope of authority that repositories have when caring for federally owned collections. As Matt noted, nobody here has disputed that the collections are property of the US government (and thus, the American people). Nor has anybody disagreed that federal officials (whether they are land managers, paleontologists, cabinet secretaries, or whoever) are ultimately accountable for this federal property. The whole discussion has been over the latitude that repositories (the usually non-federal facilities that care for federal specimens) should have in managing federal collections in their care.

One opinion is that if a facility has been approved as a repository, it has already demonstrated that it has the expertise, ability, and appropriate institutional policies to make certain decisions in its capacity as a repository (e.g., authorizing reproduction of specimens). One thing I did not realize going in was that some paleontological repositories do not have paleontologists on staff (on thinking about it some more I suspect at least some were institutions that originally had paleontologists but later phased out a paleontology program; in other cases…what? really?). As such, I see where the regulations need to account for such things (and I suspect they could be written to account for this while explicitly maintaining leeway for fully staffed repositories–perhaps a tiered repository status?). The alternative viewpoint is thus that repositories are holding tanks for federal specimens, and as such should have external sign-off for use of these specimens. This is to ensure accountability for and good stewardship of federal resources (see the post here and associated comments for more on this).

Although I completely understand and can support the latter sentiment, I am troubled by some of its implications. One is that an “authorized official”–who is not a paleontologist–is effectively acting as collections manager/curator/museum director. In light of the way federal property responsibilities are laid out, this is understandable. However, the regulations as drafted do not always specify that this official must consult with an agency paleontologist prior to making decisions over use of fossils. I would strongly urge that consultation with a paleontologist be written into the regulations at all appropriate points, so as to avoid any wiggle room. This has the positive effect of also emphasizing the need for more paleontologists in the federal system (see: my opening paragraphs).

My second concern is that the regulations (probably unintentionally) send mixed messages to repositories and scientists as to what activities are allowed without approval. Although I do not completely agree, I understand why molding and casting or consumptive sampling might require USFS approval (particularly for institutions without in-house expertise). However, a number of other activities are puzzling by their absence. Preparation–cleaning and stabilizing a fossil for study–has far more destructive potential even under the most experienced and highly trained hands, but is not mentioned at all in the regulations. Are museums to assume that they are allowed to prepare fossils without additional authorization? Or would a strict reading of “federal officers as stewards of public resources” mandate that fossil preparation receive appropriate permission from an authorized official? Similarly, should federal authorization be sought for research photography of federal specimens in a repository? How about simply study of a specimen? How about visiting a collection to view federal specimens? Or putting a specimen on exhibit? Gluing a broken specimen?

I ask these not to be difficult, but to think through the implications of what it means for a specimen to be federal property, and how this affects the way museums and scientists operate. As Matt Brown correctly noted, scientists have a checklist of things to do before and during study of a specimen, regardless of who owns it. Ask permission to open cabinets. Ask permission to study specimens. Let the museum know what your plans are for the research. If something breaks, tell the museum. Ask permission to take photographs. Make sure it’s OK to prepare a fossil before doing so. A museum would never place a loaned specimen on exhibit without asking permission of the owner. Etc. Strictly speaking, the concept of federal accountability for federal property leaves the impression that all of these should have federal approval first, but these are not written into the regulations (nor are they in most “official” repository documents that I’ve seen). Indeed, if the issue is just about accountability for the specimens, the level of oversight needs to be much, much higher than provided in the proposed policies. This is certainly not the case in practice (I’ve never had a collections manager ask me to wait while they check that it’s OK to photograph federal specimens), and as it stands things seem inconsistent (e.g., why does CT scanning receive special mention but not fossil preparation). Similarly, this level of oversight could approach the level of ridiculous (and it would be completely unsustainable even with 1,000 more federal paleontologists in the system). I am not saying that others have actually proposed this; just that accountability for museum specimens has many levels beyond inventory and duplication rights. Any museum’s collections policy manual will reflect this! Nor are museums operating with zero oversight in the current system–repository reports and the occasional facility inspection hold museums accountable.

As a result, parts of the regulations send somewhat mixed signals on allowable actions for scientists and repositories. I am not saying that this intentional or malicious on anyone’s part. If there is any fault here, it is poor communication between museums, federal officials, and scientists. Moving forward, I would like to see allowed activities more clearly defined, after discussion with all stakeholders. What is a scientist or a museum permitted to do without consultation of a federal official? Making “collections available for scientific research and public education” is vague indeed, particularly if the most strict interpretation of federal specimens as federal property is contrasted against the broadest interpretation of what it means to make something available for research and education. I realize that a list could never mention everything and that sometimes ambiguity permits flexibility, but most museums already have policies in place that could serve as models. Even if not enshrined in official regulation, perhaps this is an opportunity to discuss and outline these use cases. (if someone knows a resource that discusses this already, please post in the comments–my reading of publicly available documents mostly yielded National Park Service policies or policies at individual district levels, mostly discussing commercial rather than scientific use of museum specimens). In cases where federal land managers are worried about someone profiting off of federal collections (e.g., the case of the CT scan mentioned by Matt), a simple non-commercial use clause for repositories in conjunction with a clear permitting process for commercial uses would suffice.

No matter how broad or narrow one wishes the federal oversight of repositories, it is painfully clear that there are not nearly enough paleontologists in the federal system to manage the resources in the field or the repository. I will confess I am not optimistic for any change in that situation given the current federal budget issues (and part of why I advocate for a greater role in decision-making by repositories). Nonetheless, I will be first in line to write a letter and mobilize support on this issue (no matter what my feelings are on other aspects of federal policy).

Another issue that has been mentioned is that paleontologists can help out by offering support through federal advisory committees, etc. In the past, perhaps as a result of the small number of federal paleontologists, it has been very unclear that this was even an option (beyond presenting at a federal fossil conference). I look forward to seeing this achieve broader fruition. I particularly would like to see a deeper public dialogue on which uses of specimens by repositories and scientists do and don’t require prior approval.

With that, I should end this long and rambling post. There’s a lot of ground covered here, and I’m sure the discussion is not yet finished (nor should it be).

A Final Call to Action
Today is the final day to submit comments on the proposed USFS regulations for paleontological resources on its lands (prior to midnight, to be precise). If you think the rules are okay exactly as written, that parts need modification, or that the whole thing should be sent to the scrap heap, submit a comment! Read the regulations, read varying perspectives on the regulations, and formulate your own opinion. Even after you have sent in your comments, don’t let matters rest there. We have more proposed regulations coming down the pipe (e.g., for the BLM), so it is important to stay engaged in the issue. Engagement means more than just commenting on regulations–I certainly plan to take up any invitations to support ongoing work relevant to fossils on public lands. We all can!

[Disclaimer–all opinions here are my own, and do not reflect official statements by my employer or PLOS, etc., etc.]

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