[Senate Hearing 107-794]
[From the U.S. Government Publishing Office]
S. Hrg. 107-794
ILLEGAL TRAFFICKING OF ARCHAEOLOGICAL RESOURCES; PROTECTION OF
PALEONTOLOGICAL RESOURCES; AND DESIGNATE CERTAIN WATERWAYS IN PUERTO
RICO
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL PARKS
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
on
S. 2598
TO ENHANCE THE CRIMINAL PENALTIES FOR ILLEGAL TRAFFICKING OF
ARCHAEOLOGICAL RESOURCES, AND FOR OTHER PURPOSES
S. 2727
TO PROVIDE FOR THE PROTECTION OF PALEONTOLOGICAL RESOURCES ON FEDERAL
LANDS, AND FOR OTHER PURPOSES
H.R. 3954
TO DESIGNATE CERTAIN WATERWAYS IN THE CARIBBEAN NATIONAL FOREST IN THE
COMMONWEALTH OF PUERTO RICO AS COMPONENTS OF THE NATIONAL WILD AND
SCENIC RIVERS SYSTEM, AND FOR OTHER PURPOSES
__________
JULY 23, 2002
__________
Printed for the use of the
Committee on Energy and Natural Resources
U.S. GOVERNMENT PRINTING OFFICE
83-310 WASHINGTON : 2002
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii FRANK H. MURKOWSKI, Alaska
BYRON L. DORGAN, North Dakota PETE V. DOMENICI, New Mexico
BOB GRAHAM, Florida DON NICKLES, Oklahoma
RON WYDEN, Oregon LARRY E. CRAIG, Idaho
TIM JOHNSON, South Dakota BEN NIGHTHORSE CAMPBELL, Colorado
MARY L. LANDRIEU, Louisiana CRAIG THOMAS, Wyoming
EVAN BAYH, Indiana RICHARD C. SHELBY, Alabama
DIANNE FEINSTEIN, California CONRAD BURNS, Montana
CHARLES E. SCHUMER, New York JON KYL, Arizona
MARIA CANTWELL, Washington CHUCK HAGEL, Nebraska
THOMAS R. CARPER, Delaware GORDON SMITH, Oregon
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
Brian P. Malnak, Republican Staff Director
James P. Beirne, Republican Chief Counsel
------
Subcommittee on National Parks
DANIEL K. AKAKA, Hawaii, Chairman
BYRON L. DORGAN, North Dakota CRAIG THOMAS, Wyoming
BOB GRAHAM, Florida BEN NIGHTHORSE CAMPBELL, Colorado
MARY L. LANDRIEU, Louisiana CONRAD BURNS, Montana
EVAN BAYH, Indiana GORDON SMITH, Oregon
CHARLES E. SCHUMER, New York CHUCK HAGEL, Nebraska
THOMAS R. CARPER, Delaware PETE V. DOMENICI, New Mexico
Jeff Bingaman and Frank H. Murkowski are Ex Officio Members of the
Subcommittee
David Brooks, Senior Counsel
Nancie Ames, Bevinetto Fellow
C O N T E N T S
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STATEMENTS
Page
Acevedo-Vila, Anibal, Resident Commissioner, Puerto Rico......... 2
Akaka, Hon. Daniel K., U.S. Senator from Hawaii.................. 1
Estill, Elizabeth, Deputy Chief, Programs and Legislation, Forest
Service........................................................ 8
Kearney, Christopher, Deputy Assistant Secretary for Policy,
Management and Budget, Department of the Interior.............. 4
Stucky, Richard, Ph.D., President, Society of Vertebrate
Paleontology, and Vice President, Denver Museum of Nature and
Science........................................................ 11
ILLEGAL TRAFFICKING OF ARCHAEOLOGICAL RESOURCES; PROTECTION OF
PALEONTOLOGICAL RESOURCES; AND DESIGNATE CERTAIN WATERWAYS IN PUERTO
RICO
----------
TUESDAY, JULY 23, 2002
U.S. Senate,
Subcommittee on National Parks,
Committee on Energy and Natural Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:30 p.m., in
room SD-366, Dirksen Senate Office Building, Hon. Daniel Akaka
presiding.
OPENING STATEMENT OF HON. DANIEL K. AKAKA,
U.S. SENATOR FROM HAWAII
Senator Akaka. The hearing of the Subcommittee on National
Parks will come to order.
Good afternoon, everyone. I want to thank all of the
witnesses and all of those of you in the audience for your
interest in today's hearing.
The purpose of this afternoon's hearing before the
Subcommittee on National Parks is to receive testimony on three
bills pending before the subcommittee. The bills that we are
considering today include S. 2598, to enhance the criminal
penalties for illegal trafficking of archeological resources;
S. 2727, to provide for the protection of paleontological
resources on Federal lands; and H.R. 3954, to designate certain
waterways in the Caribbean National Forest in the Commonwealth
of Puerto Rico as components of the National Wild and Scenic
Rivers System.
I am pleased to see this bill, which recognizes the
importance of our country's tropical resources and extends the
designation of wild and scenic rivers to the Caribbean.
The other two bills before us today would protect the
extensive assemblage of clues to our heritage and biological
past found in fossils and archeological resources. Senator
Leahy's S. 2598 would strengthen and rationalize criminal
penalties for theft or damage to cultural and archeological
resources, particularly those relating to Native American
cultural items.
I would like to take a moment to make a brief statement
about S. 2727, the Paleontological Resources Preservation Act.
I am cosponsoring this legislation with Senators Inouye and
Feinstein to protect and preserve the Nation's important fossil
record for the benefit of our citizens. Vertebrate fossils are
threatened by a growing commercial market which is being
supplied in part by the illegal collection of fossil specimens.
This bill establishes a national policy for preserving and
managing paleontological resources found on Federal lands. It
provides uniformity to the patchwork of statutes and
regulations that currently exist. And it ensures that the
public will have educational and scientific access to this part
of the geological and biological past.
I would like to emphasize that this bill in no way affects
the archeological or cultural resources under the Archeological
Resources Protection Act of 1979 or the Native American Graves
Protection and Rehabilitation Act. They are exempted. This bill
covers paleontological remains, such as dinosaurs and mammoths,
on Federal lands only.
S. 2727 is based on seven principles outlined in the May
2000 report entitled, ``An Assessment of Fossil Management on
Federal and Indian Lands,'' which was prepared by the
Department of the Interior, the U.S. Forest Service, and the
Smithsonian Institution.
The bill finds that fossil resources on Federal lands are
an irreplaceable part of the heritage of the United States. It
affirms the principle that reasonable access to fossil
resources should be provided for scientific, educational, and
recreation purposes.
While the bill provides for casual or amateur collection of
invertebrate fossils, it also protects vertebrate fossils under
a system of permits. The penalties and criminal provisions in
the measure are modeled after ARPA and reflect the need to
provide a strong disincentive to those who would steal such
resources from Federal lands. Fossils are too important to be
left within the general theft provisions and they are too
valuable to the education of our children for us not to ensure
public access.
I look forward to hearing the testimony of our witnesses on
this topic. I also look forward to working with the bills'
sponsors and with Senator Thomas, as we consider all three of
these bills.
Our witnesses this afternoon will be Christopher Kearney,
Deputy Assistant Secretary for Policy, Management and Budget
for the Department of the Interior; Elizabeth Estill, Deputy
Chief for Programs and Legislation, U.S. Forest Service; and
Dr. Richard Stucky, president of the Society of Vertebrate
Paleontology from the Denver Museum of Nature and Science.
At this time, I would like to call on Senator Thomas for
any opening statement you have.
[A prepared statement from Congressman Acevedo-Vila
follows;]
Prepared Statement of Hon. Anibal Acevedo-Vila, Resident Commissioner,
Puerto Rico
I want to thank Chairman Akaka and Ranking Member Thomas for
including H.R. 3954--The Caribbean National Forest Wild and Scenic
Rivers Act of 2002 on the agenda today and I welcome this opportunity
to testify and work with the Subcommittee to enact this legislation.
Earlier this year, I introduced H.R. 3954 with great pride. The
Caribbean National Forest, commonly known in Puerto Rico as El Yunque,
is the only tropical rain forest within the U.S. National Forest
System. El Yunque is a natural wonder and unique resource that we must
preserve and protect forever. El Yunque is the only managed rain forest
on earth, and with this distinction comes heightened responsibility in
my opinion, to fully protect this important resource. The enactment of
this bill will help ensure that the natural integrity of El Yunque is
reserved for the 1 million annual visitors to the CNF for generations
to come.
H.R. 3954 would preserve and protect three rivers that flow within
the boundaries of El Yunque. It is the intent of the Wild and Scenic
Rivers Act of 1968 to preserve rivers and sections thereof to protect
the water quality of such rivers and to fulfill other vital national
conservation purposes. It is within this intent that I have introduced
this bill, and I am fully committed to the preservation of these
beautiful rivers. While there are additional rivers within El Yunque
that have received wild and scenic designation recommendations, the
areas of these rivers are covered under H.R. 3955 through wilderness
designation, or are within the existing Bano de Oro Natural Area.
Therefore, I have followed recommendations to focus on rivers running
outside of the proposed El Toro Wilderness Area and outside of existing
natural areas.
The three rivers that would be designated under this act were all
recommended for inclusion under the National Wild and Scenic Rivers
System by the revised land and resource management plan for the CNF,
approved April 17, 1997. This management plan was the basis for the
introduction of this bill, and I ask for your support during its
consideration.
The three rivers include the Rio Mameyes, the Rio Icacos, and the
Rio de La Mina. All three have outstanding characteristics and make up
an integral part of the experience when visiting the forest.
The Rio Mameyes offers outstanding scenic, biological and
recreational values to visitors. It flows over large boulders and
numerous waterfalls, forming enjoyable pools. Trails run along gorges
that descend through the forest. The water quality along the upper
segment is optimum, with no interference from human encroachment.
The Rio Mameyes provides important habitat for the Puerto Rican
Parrot and Puerto Rican Boa, both endangered species. Furthermore, the
endangered Broad-winged and Sharp-shinned Hawks, and the threatened
Peregrine Falcon, are also known to use this area. The Mameyes system
enjoys the highest natural aquatic diversity and species richness of
any forest watershed. The Mameyes remains the only uninterrupted, free
flowing river in Puerto Rico.
The Rio de la Mina is judged as eligible based on its outstanding
scenic, recreation, biological and historic values. Like the Mameyes,
the Rio de La Mina descends over boulders and waterfalls, forming
rapids and pools. Trails parallel the river and provide for numerous
recreation areas, including picnic areas that are among the most
popular tourist destinations within the CNF. The most spectacular
waterfalls in the forest exist along the Rio de la Mina. These falls,
known as La Mina Falls, play an important role in promoting Puerto Rico
as a prime vacation destination. The water quality is good within the
proposed designation area. The Rio de la Mina also provides habitat for
endangered animal and plant species.
The Rio Icacos is judged as eligible based on its outstanding
scenic, historic, cultural and ecological values. The Rio Icacos has
some of the most varied terrain of any of El Yunque's rivers. Near the
headwaters, the gradient is less steep than further downstream where it
also descends over boulders and waterfalls. In the upper section, the
streambed exhibits a unique sandy bed due to its origin in the upper,
flatter section. The palm forest is very striking along the bank, more
so than in any other area of the forest. Water quality is high within
the proposed designation area. Endangered animal and plant species are
present within the proposed area.
With the support of this Subcommittee and of the Senate as a whole,
these wild and scenic river designations in El Yunque can become a
reality this year. I encourage all of my colleagues to visit Puerto
Rico and to spend worthwhile time visiting the Caribbean National
Forest. Puerto Ricans take great pride in El Yunque, and I assure you
it is worth the trip to visit. With your support, we can help protect
the pristine natural wonders of El Yunque forever.
Senator Thomas. I really do not have one. I have glanced at
it. I am interested in hearing about these bills. I would just
say I think there needs to be some identification of what some
of these items are, so that if you are going to enforce these
proposals, I think we have to make it clear what it is we are
enforcing. That is a very general observation.
So I look forward to hearing the comments. Thank you, sir.
Senator Akaka. Thank you very much, Senator Thomas.
We will include all of the written statements in the record
in their entirety. So I ask the witnesses to please feel free
to summarize your remarks. So please proceed with your
testimony on all of the bills. And then we will turn to
questions.
So may I ask you to deliver your testimony in order of Mr.
Kearney, Ms. Estill, and Dr. Stucky? Thank you.
STATEMENT OF CHRISTOPHER KEARNEY, DEPUTY ASSISTANT SECRETARY
FOR POLICY, MANAGEMENT AND BUDGET,
DEPARTMENT OF THE INTERIOR
Mr. Kearney. Thank you, Mr. Chairman. I will give the
testimony on S. 2598 first, followed by S. 2727, if that is all
right.
Thank you for the opportunity to present the Department's
views on S. 2598, the Enhanced Protection of our Culture
Heritage Act of 2002. The Department generally supports the
enhancement of statutory penalties for cultural resource
crimes. However, it is unclear whether this bill will, in all
instances, strengthen cultural heritage protection.
S. 2598 would propose to change the statutory penalties for
illegal trafficking under the Archeological Resources
Protection Act, ARPA, for embezzlement and theft from Indian
tribal organizations, and for illegal trafficking in Native
American human remains and cultural items under the Native
American Graves Protection and Repatriation Act. It is unclear
whether S. 2598 would strengthen ARPA.
Currently, ARPA, as read in conjunction with 18 U.S.C.
3571, provides for a graduated system that allows for a
citation of Class A misdemeanor, as well as a Class D or E
felony, depending on the value of the resource and whether or
not the offense is a first or subsequent offense.
As currently drafted, the bill would eliminate such a
graduated system and instead provide only the option to charge
an ARPA offense as a Class C felony. Although increasing
maximum fines and imprisonment terms would seem to strengthen
ARPA, eliminating the option to charge a crime as a misdemeanor
in fact may result in fewer prosecutions. The U.S. Attorneys'
Offices may be reluctant to prosecute a case if the defendant's
conduct was not so egregious as to normally warrant felony
prosecution. And similarly, juries may be reluctant to hold the
defendant responsible if a felony conviction appears overly
harsh in a particular case.
Thus, the Department supports strengthening the maximum
penalties while retaining a graduated system that will provide
the U.S. Attorney's Office with the discretion to charge a
defendant with the type of violations ARPA provisions and S.
2598 intends to address.
Also, although the heading appears to apply only to illegal
trafficking under ARPA, the subsection amended would actually
cover other crimes under ARPA as well. We would like the
opportunity to further review the bill and to work with the
committee and the U.S. Department of Justice to craft
appropriate language that would more clearly accomplish our
mutual goals.
As you know, earlier this year the Department expressed its
support for the establishment of a sentencing guideline for the
protection of cultural heritage resources. After a 2-year
review, the U.S. Sentencing Commission had found that existing
sentencing guidelines inadvertently--or inadequately, rather,
covered a variety of offenses involving the theft, damage to,
destruction of, or illicit trafficking in cultural resources,
including national memorials, et cetera. And then it submitted
the report--I apologize for that.
Because individuals, communities, and Nations identify
themselves through intellectual, emotional, and spiritual
connections to places and objects, the effect of cultural
resources crimes sometimes transcends mere monetary
considerations. Consequently, the commission transmitted to
Congress on May 1, 2002, a proposed guideline amendment that
takes into account the transcendent value of these
irreplaceable resources and punishes in a proportionate way the
particular offense characteristics associated with the range of
cultural resources. These amendments will take effect on
November 1, 2002, unless Congress passes legislation
disapproving them.
Mr. Chairman, that concludes my statement. I would be
pleased to answer any questions on this that you may have. As I
say, we look forward to working with the committee to address
the mutual goals and the issues that we have raised in the
testimony on this bill.
Senator Akaka. Thank you very much.
[The prepared statement of Mr. Kearney follows:]
Prepared Statement Christopher Kearney, Deputy Assistant Secretary for
Policy, Management and Budget, U.S. Department of the Interior on S.
2727 and S. 2598
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.
s. 2598
Mr. Chairman, thank you for the opportunity to present the
Department of the Interior's views on S. 2598, Enhanced Protection of
Our Cultural Heritage Act of 2002. The Department generally supports
the enhancement of statutory penalties for cultural resource crimes,
however, it is unclear whether this bill will, in all instances,
strengthen cultural heritage protection.
S. 2598 would propose to change the statutory penalties for illegal
trafficking under the Archaeological Resources Protection Act (ARPA; 16
U.S.C. 470ee), for embezzlement and theft from Indian tribal
organizations (18 U.S.C. 1163), and for illegal trafficking in Native
American human remains and cultural items under the Native American
Graves Protection and Repatriation Act (NAGPRA; 18 U.S.C. 1170).
It is unclear whether S. 2598 would strengthen ARPA. Currently,
ARPA, as read in conjunction with 18 U.S.C. 3571, provides for a
graduated system that allows for citation of a Class A misdemeanor as
well as a Class D or E felony, depending on the value of the resource
and whether or not the offense is a first or subsequent offense. As
currently drafted, S. 2598 would eliminate such a graduated system, and
instead provide only the option to charge an ARPA offense as a Class C
felony. Although increasing maximum fines and imprisonment terms would
seem to strengthen ARPA, eliminating the option to charge a crime as a
misdemeanor, in fact, may result in fewer prosecutions. U.S. Attorneys
Offices may be reluctant to prosecute a case if the defendant's conduct
was not so egregious as to normally warrant felony prosecution.
Similarly, juries may be reluctant to hold a defendant responsible if a
felony conviction appears overly harsh in a particular case. Thus, the
Department supports strengthening the maximum penalties, while
retaining a graduated system that will provide the U.S. Attorneys
Office with the discretion to charge a defendant with an offense that
more appropriately fits the conduct involved. In addition, it is
unclear what type of violations the ARPA provision in S. 2598 intends
to address. Although the heading appears to apply only to illegal
trafficking under ARPA, the subsection amended would actually cover
other crimes under ARPA as well. We would like an opportunity to
further review the bill and to work with the Committee and the U.S.
Department of Justice to craft appropriate language that would more
clearly accomplish our mutual goals.
Earlier this year, the Department expressed its support for the
establishment of a sentencing guideline for the protection of cultural
heritage resources. After a two-year review, the United States
Sentencing Commission had found that existing sentencing guidelines
inadequately covered a variety of offenses involving the theft of,
damage to, destruction of, or illicit trafficking in cultural
resources, including national memorials, archeological resources,
national parks, and national historic landmarks. Because individuals,
communities, and nations identify themselves through intellectual,
emotional, and spiritual connections to places and objects, the effect
of cultural resources crimes sometimes transcends mere monetary
considerations. Consequently, the Commission transmitted to Congress on
May 1, 2002 a proposed guideline amendment that takes into account the
transcendent value of these irreplaceable resources, and punishes in a
proportionate way the particular offense characteristics associated
with the range of cultural resources crimes. These amendments will take
effect on November 1, 2002, unless Congress passes legislation
disapproving them.
Though most Americans may think of looting as a crime that takes
place during times of civil unrest, the Department has come to know
better. Surprisingly, cultural resource crimes occur frequently and
have been occurring with increased frequency on our federal lands. One
Bureau of Land Management archeologist in Utah estimates that 80
percent of the surface artifacts at one site have disappeared within
the last two to three years. We have seen a shift in the type of looter
who commits these crimes. Countless magazine and newspaper articles and
television shows discussing cultural resources has led to a dramatic
drop in offenses committed by ``the casual looter,'' a recreationist
who picks up an artifact while hiking or damages an archeological site.
Although this type of theft and damage still occurs, these incidents
are uncommon. A more recent trend is the theft and damage of cultural
resources by ``professional looters,'' hard-core looters who sell the
resources for monetary gain and often have criminal histories, usually
drug-related or violence-related. Professional looters educate
themselves about the locations of archeological sites and the kinds of
artifacts and grave goods that may be found at those sites. Many of
them are technology savvy, using Global Positioning Systems (GPS) and
conducting extensive computer research to locate specific sites.
In order to maximize the impact of our law enforcement efforts, we
have joined forces with other federal agencies to educate law
enforcement officers regarding the pervasive criminal activity. Until
we are able to completely deter such criminal conduct, we must work
hard to use the criminal and civil enforcement tools at our disposal to
diminish the looting of our national and Indian treasures. In working
closely with the Department of Justice, United States Attorneys, and
federal law enforcement officials, we have found that effective
prosecutions under ARPA and NAGPRA receive positive publicity and raise
the public awareness of the seriousness of these crimes. We believe
that such prosecutions can have a positive deterrent effect.
Mr. Chairman, that concludes my statement. I would be pleased to
answer any questions you or other members of the Committee may have.
Senator Akaka. Ms. Estill.
STATEMENT OF ELIZABETH ESTILL, DEPUTY CHIEF, PROGRAMS AND
LEGISLATION, FOREST SERVICE
Ms. Estill. Okay. Mr. Chairman, thank you very much, and
members, for allowing us the opportunity to be here today. I am
Elizabeth Estill, the Deputy Chief for Programs and Legislation
for the USDA Forest Service.
I am planning to provide comment on two of these bills, on
S. 2727, the Paleontological Resources Preservation Act, and
H.R. 3954, the Caribbean National Wild and Scenic Rivers Act.
And I will summarize our comments on both of those in that
order.
National Forests and Grasslands contain an enormously
valuable array of fossils. Unified guidelines for
paleontological resource management and special protection for
vertebrate paleontological resources are greatly needed.
People's legitimate interest in fossils is at an all-time high.
Unfortunately, so is the amount of illegal activity, such as
theft and vandalism.
USDA supports the purpose of S. 2727 to establish a
comprehensive national policy for preserving and managing
paleontological resources on Federal lands. The Department has
concerns about one provision and would like to work with the
committee with written comments to address this issue.
We, the Forest Service, currently manage paleontological
resources under a patchwork of laws that do not specifically
address unique characteristics or provide adequate management
and protection of the resource, including the Organic
Administration Act of 1897, the Archeological Resource
Protection Act of 1979, and the Federal Cave Resources
Protection Act of 1988.
The latter two statutes only protect certain kinds of
paleontological resources where they are associated either with
archeological resources or cave resources. So our management
strategies and our protection strategies are also patched
together. And they are not as consistent, nor are they as
effective, as we would like.
Between 1991 and 1996, a period when I was the regional
forester responsible for this particular area, a full one-third
of all fossil sites inventoried on the Oglala National
Grassland in Nebraska were found to have been vandalized. In
addition to the market value of the fossils--and we are talking
many millions of dollars--valuable data was lost to science and
to the public.
In 1996, in a case involving theft on a National Forest in
California, which was prosecuted under civil authority by the
Department of Justice, it was pointed out that more specific
statutes and regulations related to theft of Federal fossils
truly were needed.
S. 2727 directs the Secretary of the Interior and the
Secretary of Agriculture to manage and protect paleontological
resources using scientific principles. The bill recognizes the
nonrenewable nature of fossils and defines paleontological
resources as ``fossil remains preserved in or on the Earth's
crust.'' If enacted, the bill would establish noncommercial
collection provisions, including permit requirements for
scientific and educational purposes using uniform and
consistent data and criteria.
S. 2727 recognizes that paleontological resources are
Federal property and that the fossil, as well as the associated
field data and other records, will be preserved and made
available to the public. S. 2727 is also important to the
Forest Service because it recognizes casual collecting of
invertebrate and plant fossils for recreational, noncommercial
use as a valid public activity on National Forests.
S. 2727 provides for uniform criminal penalties for all the
Federal managing agencies. Currently there is a real mixture of
sentencing laws, regulations, and guidelines that has created
some confusion for U.S. attorneys and magistrates.
Mr. Chairman, paleontological resources, especially
vertebrate fossils, are heritage resources. They are evidence
of the past history of life on Earth. They provide
opportunities for the public to learn more about ancient Earth
ecosystems and the development of life from research and study
of these resources.
The Forest Service is committed to their protection while
providing opportunities for research, education, and
recreation. The Paleontological Resources Protection
Preservation Act would help secure the authority of the Forest
Service to manage and protect all paleontological resources on
National Forest System lands.
With regard to H.R. 3954, the Caribbean National Forest
Wild and Scenic Rivers Act of 2002, H.R. 3954 amends a section,
actually section 3(a), of the Wild and Scenic Rivers Act to
designate three rivers in Caribbean National Forest in the
Commonwealth of Puerto Rico as components of the National Wild
and Scenic River System.
The segments to be designated by H.R. 3954 include 4.5
miles of the Rio Mameyes, 2.1 miles of the Rio de la Mina, and
2.3 miles of the Rio Icacos. All three of these stream segments
were recommended for inclusion in the Wild and Scenic River
System through the revision of the Caribbean National Forest
and Luquillo Experimental Forest Plan.
To cut to the chase, the Department supports H.R. 3954.
And this concludes my statement. I would be happy to answer
any questions.
Senator Akaka. Thank you very much.
[The prepared statement of Ms. Estill follows:]
Prepared Statement of Elizabeth Estill, Deputy Chief, Programs and
Legislation, Forest Service
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to be here today. I am Elizabeth Estill, Deputy Chief for
Programs and Legislation, USDA Forest Service. I will provide the
Department's comments on two bills: S. 2727 Paleontological Resources
Preservation Act, and H.R. 3954 Caribbean National Forest Wild and
Scenic Rivers Act.
Unified guidelines for paleontological resources management and
special protection for vertebrate paleontological resources are greatly
needed on National Forest lands. Forest users, amateurs and scientists
alike, are demanding opportunities for recreation, education,
interpretation, and the scientific study of fossils. As these
legitimate demands increase so does the amount of illegal activity such
as theft and vandalism. Therefore, clearly defined, consistent
penalties to deter theft and vandalism of fossils from federal lands
are also needed. USDA supports the purpose of S.2727 to establish a
comprehensive national policy for preserving and managing
paleontological resources on Federal lands. However, the Department has
concerns about some of the legislative provisions and would like to
provide the committee with written comments to address these issues.
The Forest Service currently manages paleontological resources
under a patchwork of laws that do not specifically address the unique
characteristics or provide adequate management and protection of the
resource. These laws include the Organic Administration Act of 1897,
the Archaeological Resource Protection Act of 1979, and the Federal
Cave Resources Protection Act of 1988. The later statutes only protect
paleontological resources when they are associated with archeological
resources, or when they occur in caves, respectively. Between 1991 and
1996, a full one-third of all fossil sites inventoried in the Oglala
National Grassland in Nebraska were found to have been vandalized, and
as a result, valuable data was lost to science and to the public. In
1996, a case involving fossil theft on National Forest System lands in
California, which was prosecuted under civil authority by the
Department of Justice and ultimately settled out of court, pointed out
the need for more specific statutes and regulations related to theft of
federal fossils.
S. 2727 directs the Secretary of the Interior and the Secretary of
Agriculture to manage and protect paleotontological resources using
scientific principles. The bill recognizes the non-renewable nature of
fossils and defines paleontological resources as fossilized remains
preserved in or on the Earth's crust. The bill goes on to separate
these resources from archeological resources, covered under the
Archaeological Resources Protection Act (ARPA), cultural resources,
covered under statutes such as the National Historic Preservation Act
and the Native American Graves Protection and Repatriation Act (NAGPRA)
and mineral resources.
If enacted, the bill would establish non-commercial collection
provisions including permitting requirements for scientific and
educational purposes using uniform and consistent criteria. S. 2727
recognizes that paleontological resources are federal property, and
that the fossil as well as the associated field data and other records
will be preserved and made available to the public. S. 2727 is also
important to the Forest Service because it recognizes casual collecting
of invertebrate and plant fossils for recreational, non-commercial use
as a valid public activity on National Forests for which a permit may
not be required where the collecting is in compliance with land
management statutes and with the act.
S. 2727 provides for uniform criminal penalties for all the federal
managing agencies for theft and damage of paleontological resources.
Currently, there is a complex mix of sentencing laws, regulations and
guidelines that has created confusion for United States attorneys and
magistrates. For example, for the Forest Service, a first offense is a
Class B Misdemeanor, punishable for not more than 6 months
imprisonment, or $5,000 fine, or both. For the Bureau of Land
Management (BLM), it is a Class A Misdemeanor, which is punishable for
not more than 1-year imprisonment, or $100,000, or both [18 USC 3571].
The penalties defined in S. 2727 are consistent with proposed
recommendations of the U.S. Sentencing Commission for increased
penalties for cultural heritage resources.
Mr. Chairman, paleontological resources, especially vertebrate
fossils, are heritage resources. They are evidence of the past history
of life on Earth. They provide opportunities for the public to learn
more about ancient Earth ecosystems and the development of life from
research and study of these resources. The Forest Service is a steward
of these heritage resources and is committed to their protection while
providing opportunities for research, education, and recreation. The
Paleontological Resources Preservation Act would help secure the
authority of the Forest Service to manage and protect all
paleontological resources on National Forest System lands.
h.r. 3954 caribbean national forest wild and scenic rivers act of 2002
H.R. 3954 Caribbean National Forest Wild and Scenic Rivers Act
amends Section 3(a) of the Wild and Scenic Rivers Act (16 U.S.C.
1274(a)) to designate three rivers in the Caribbean National Forest in
the Commonwealth of Puerto Rico as components of the National Wild and
Scenic River System. The segments to be designated by H.R. 3954 include
4.5 miles of the Rio Mameyes, 2.1 miles of the Rio de la Mina, and 2.3
miles of the Rio Icacos. All three stream segments were recommended for
inclusion in the Wild and Scenic Rivers System through the revision of
the Caribbean National Forest/Luquillo Experimental Forest Plan. H.R.
3954 would allow, subject to the Secretary's discretion, installation
and maintenance of data collection and transmission facilities,
construction and maintenance of structures to allow monitoring of
threatened and endangered species, and construction and maintenance of
trails for research facilities, consistent with protecting the
characteristics of the river that merited its designation as a wild,
scenic, or recreation river.
The Department supports H.R. 3954.
Mr. Chairman, this concludes my statement. I would be happy to
answer any questions from you and the other Members of the
Subcommittee.
Senator Akaka. Dr. Stucky.
STATEMENT OF RICHARD STUCKY, Ph.D., PRESIDENT, SOCIETY OF
VERTEBRATE PALEONTOLOGY, AND VICE PRESIDENT, DENVER MUSEUM OF
NATURE AND SCIENCE
Dr. Stucky. Thank you, Mr. Chairman. I am absolutely
honored to have the privilege of presenting this testimony
before your committee. I am the president of the Society of
Vertebrate Paleontology, which represents 2,100 different
professional scientific paleontologists, amateur
paleontologists, and commercial paleontologists. I am also the
vice president of the Denver Museum of Nature and Science. It
has 1.5 million visitors per year and sees 400,000 children,
school children, who enjoy the dinosaurs at our museum.
My testimony is in support of S. 2727. Dinosaurs and
paleontology are the windows through which most young children
get their first interest and introduction to science.
Heightened interest in the media has absolutely raised the
public interest in dinosaurs and in the history of life and has
inspired greater curiosity. Fossils from our public lands
represent a significant national resource. Of 1.8 million
vertebrate fossils in public museums and private museums
surveyed in 1991, 49 percent of those specimens came from
public lands.
This greater curiosity, the specimens we have on public
lands and so on, have also unfortunately led to a black market
trade in fossils. S. 2727--and I know you have reviewed some of
these things, but I wanted to review those as well--has no
impact whatsoever on private property or on private lands. It
does not change any aspect, any current aspect, of the access
to fossil on public lands by amateurs, educators,
professionals, or hobbyists. Amateurs and educators will still
be able to engage in hobby collecting. It does not require any
kind of public investment to collect or curate specimens.
What the bill does is it codifies into uniform guidelines
for collecting fossils from all different types of Federal
lands. It inspires greater cooperation among educators,
amateurs, the general public, and land managers and
professional scientists. It also provides for stronger
penalties for violations of the act. And it raises the ethical
awareness of the value of this significant national treasure.
Why should we have the Paleontological Resources
Preservation Act? First of all, fossil theft and vandalism.
Fossils are a nonrenewable resource that is the only record of
the history of life on our planet. Each fossil represents a
unique snapshot of past life. Because fossils are nonrenewable,
their loss or destruction is irreversible. And once taken out
of their original context, the scientific significance or the
educational significance is lost.
Significant fossils on public lands are a national treasure
owned by all people. And they should become a part of our
national heritage. Preservation and study of fossils with
educational and scientific values is the real goal of this
legislation. Since the inception of the high interest in
fossils in the 1970's, theft and vandalism has become much more
common. A number of cases have been prosecuted, but many
fossils have been stolen, vandalized and lost forever from our
public record.
One of our volunteers at our museum reported that they had
found an area where the specimens, dinosaur specimens, partial
skeletons, had been bulldozed in order for somebody to come and
pick fragments up so that they could be sold as just curios,
dinosaur bone curios.
On the national parks between 1995 and 1998, there were 731
cases of fossil theft or vandalism. And we have heard about the
one-third of all fossil sites in Oglala National Grasslands
being pilfered.
In my personal experience, I found places where graveyards
of turtles have been totally destroyed by individuals, where
skeletons of an animal, where the skull had been removed for
some vandal to take off to put in their collection. In some
cases, fossils have absolutely been fabricated to make them
much more valuable on the market.
Fines are very small right now for the values of specimens
that are so large. A scientific and educationally valuable
fossil may sell for thousands, if not millions, of dollars.
Even a fossil fish or a turtle shell may sell for up to $5,000,
a dinosaur skull, $100,000, or one dinosaur skeleton has
actually sold for over $7 million. Fines levied today are a
mere slap on the wrist for the specimens that are worth so much
money.
The risk of capture and conviction on the part of thieves
and vandals is very, very small. S. 2727 raises the penalties.
It will not prevent ongoing theft, but it will raise the
ethical awareness and standards in order to minimize the loss
of this valuable resource.
Support for the basic principles of the bill have been
endorsed by a number of groups, including the Western Interior
Paleontological Society, one of the largest amateur societies
in the country, and the Natural Science Collection Alliance,
which is an organization that consists of museum and public and
private repositories that hold our specimens.
The Paleontological Society and the Society of Vertebrate
Paleontology together represent 90 percent of all
paleontologists, as well as a number of amateurs. And together
they have provided a joint statement that supports the
underlying principles of the bill.
In addition to the many amateurs and professional
scientists who support the principles, the American people are
in support. In a random survey of 300 people conducted by an
individual in a national public marketing firm, 85 percent of
the American public that were surveyed agreed that fossils of
animals with backbones are a part of the national heritage and
should be protected.
One important suggestion on S. 2727 is that the definition
of public lands should be expanded to include lands
administered by the Army Corps of Engineers. There are many
valuable resources and projects going on on these lands. The
bill raises the awareness of the value of significant fossils
and their importance to our national heritage. It will inspire
new cooperative partnerships on the part of amateurs, the
public, professional scientists, educators, and land managers.
It raises the ethical standard for preserving our national
heritage. It promotes better practice in the scientific
enterprise, which has been so important to the economic
prosperity of our country.
And I would be very happy to answer any questions that you
all might have.
Senator Akaka. Thank you.
[The prepared statement of Dr. Stucky follows:]
Prepared Statement of Richard Stucky, Ph.D., President, Society of
Vertebrate Paleontology, and Vice President, Denver Museum of Nature
and Science
I'm very honored to testify in support of S. 2727, The
Paleontological Resources Preservation Act. A heightened public
interest in dinosaurs and paleontology has given paleontologists an
unprecedented opportunity to share with the public the excitement of
recent advances in this fascinating science that records the history of
life on our planet. Dinosaurs and fossils are now the window through
which most young children get their first introduction to science,
inspiring a life-long interest in science. While it is gratifying that
the public has become more interested in the history of life on our
planet, and while paleontologists have been eager to share this
knowledge, heightened visibility has also led to the increased
commercialization and vandalism of fossils. This has led to a black
market trade in fossils from foreign countries (in violation of export
laws) and to the theft of fossils from public and private lands in the
United States.
There are several points that should be made regarding S. 2727.
First, the bill does not change any current aspect of access to fossils
on public lands on the part of amateurs, educators, or professional
scientists. It does codify into uniform guidelines current land
management authority and practice. What it does do is increase the
awareness of the cooperative spirit of amateurs and professionals and
provides for stronger penalties for those who would destroy or steal
valuable fossils from our public heritage. The bill has no impact on
private lands or on privately owned fossils. The bill essentially
raises the ethical awareness and standards for preserving fossils that
come from public lands. The legislation would adopt the basic
principles endorsed by an interagency report requested by Congress
published in 2000, ``Report of the Secretary of Interior: Fossils on
Federal and Indian Lands.''
We do need stronger penalties for theft and vandalism to fossils
from public lands. Sadly, some of the most egregious cases of theft and
vandalism have occurred on federal lands belonging to all Americans.
In 1991, the BLM discovered an illegal commercial collection taking
place on federal land. The BLM contacted the Museum of the Rockies at
Montana State University Bozeman and asked them to collect the specimen
and hold it in the public trust. As a result of this, the most complete
Allosaurus ever found, which this commercial collector intended to sell
to a private collector overseas, belongs to all the people of the
United States. As a result of careful analysis of injuries sustained by
this dinosaur and preserved in the bones, this particular specimen has
yielded a treasure trove of information about how Allosaurus lived. The
commercial collector, who had attempted to steal this fossil and the
information it tells all of us, was never prosecuted.
Unfortunately, the American people were much less fortunate in the
case of another Allosaurus find. In a case filed in court last fall
prosecutors alleged that an Allosaurus skeleton was stolen from federal
land southeast of Freemont Junction, Utah and sold to a Japanese buyer
for $400,000. BLM official stated at the time of the filing of the
complaint that ``Because it was crudely collected, we have lost any
chance to study the way the skeleton lay in the ground, how it was
buried, what happened to it after death, and other plants or animals
that may have been buried with it. We have lost a priceless piece of
America's natural heritage.'' According to allegations in the still
pending civil complaint, Barry James was contacted in 1991 by Rocky
Barney of Richfield, Utah. Barney told James he had found what appeared
to be an Allosaurus on federal land. Barney asked James if he would be
interested in buying the Allosaurus. James told Barney he would be
interested in buying the fossil and offered advice on how to excavate
the dinosaur. James privately told Brown that while it was illegal to
remove a fossil from federal land, it was worth the risk. If caught,
they would only receive a ``slap on the wrist,'' the complaint charges.
(BLM, 2001)
The escalating commercial value of fossils has created a situation
where the limited penalties that exist are not sufficient to deter
illegal collecting. In the Report ``Fossils on Federal and Indian
Lands'' it was noted that ``the fines currently imposed on fossil
thieves are usually low compared to the lost resources. For example,
one man who had stolen fossils from a national park over a period of
years was fined a total of $50.'' (Babbitt, 2000 p. 29)
In many cases the theft which is occurring is so widespread and
occurring so rapidly that we don't even know what is being lost. In a
study commissioned by the Forest Service, it was found that almost one-
third of the paleontological sites surveyed in the Oglala National
Grassland showed evidence of unauthorized collecting. In 1999, the
National Park Service identified 721 documented incidents of
paleontological resource theft or vandalism, many involving multiple
specimens, in the national parks between 1995 and 1998. (Babbitt, 2000
p. 28)
The increased commercial market for fossils has sometimes led to
distortion of the fossil record. In some cases fossils have been
altered in order to inflate their commercial value. And we have lost
significant specimens from further scientific investigation and
exhibit, making it harder for people to see and examine for themselves
the authentic objects in our museums. It's critical that scientifically
significant fossils from federal lands, i.e. that portion of the fossil
record that belongs to all the people, remain in the public domain so
that everyone--children and adults, amateur and professional
paleontologists may benefit from this irreplaceable resource.
The fossil record is our only way of learning about past life on
our planet, and it's important for all Americans to have the
opportunity to learn from this record. I've talked with many scientists
in various disciplines, and it's amazing how many first became
interested in Science through their interest in dinosaurs and other
fossils. For this reason we're happy to see that S. 2727 calls for the
establishment of a program to increase public awareness about the
significance of paleontological resources. As we confront important
public policy issues including climate change and the extinction of
species the fossil record provides a critical historical basis to help
guide our decisions.
I'd like to share a little bit of information with you about how
paleontological research is done and why this legislation is essential
to ensuring maximal public benefit from this research.
Many kinds of fossils, including those of most vertebrates, are
rare for several reasons. Many organisms are not readily preserved as
fossils because they do not have hard parts. Only rather unusual
sedimentary rock environments preserve soft parts long enough to become
fossilized. Also, organisms can only be preserved where sediments
accumulate at a fairly high rate. Most organic remains are not buried
fast enough to contribute to the fossil record. Vertebrate fossils are
much less common than invertebrate and plant fossils across all
sedimentary rocks. Although we are fortunate to have some exceptions,
spectacular deposits of diverse and complete organisms are rare over
the history of the earth. The majority of fossil vertebrate species are
extremely rare or are represented by a single unique specimen. For
these reasons the chances of any vertebrate becoming a fossil are very
small. Thus, individual vertebrate fossils are extremely valuable as
bearers of information about the past. Furthermore, fossils of extinct
groups are not renewable. More fossils will be discovered and
collected, but always from a finite supply. Importantly more than 99%
of all life forms that have ever lived on earth are extinct and are
only known by fossils.
The rocks in which the fossils are found provide information about
the environment of preservation and its climate, the age of the
fossils, position in a historical sequence, and paleogeographic
location. Fossil assemblages provide information about ecological
interactions and communities.
A fossil collected without this information has lost much of its
value, and we know little more than that this animal lived and died. In
contrast, when contextual data are collected and studied, we begin to
understand how the animal lived and its place in the balance of nature.
As paleontologists and geologists learn more ways to interpret ancient
environments and ecological communities from fossil assemblages in
their original context, this information becomes more and more valuable
and important. These contextual data allow us to bring these animals to
life for 10s of millions of visitors to our museums and to the many
young children who have hands-on experience with original specimens.
The understanding of evolutionary processes and relationships comes
primarily from comparing the skeletons from different animals to each
other. In order to do this; researchers must be able to compare new
specimens with those previously unearthed. Oftentimes a new analysis
many years later shows our earlier understanding was incomplete or
mistaken. For example, when Dr. John Ostrom was doing research on
Deinonychus, a dinosaur similar to the Velociraptors popularized in
Jurassic Park, he found that a specimen thought to be a carnivorous
dinosaur was actually the extremely rare early bird Archaeopteryx.
Ostrom's research was critical in establishing the link between
dinosaurs and birds that proud young dinosaur aficionados lecture their
parents about. Only when specimens are properly collected and curated
in public institutions can researchers access these specimens in order
to make these comparisons. And when these comparisons and
interpretations are made, education and the general public greatly
benefit by having access to this new interpretive knowledge through
media reports, books, and the Internet.
Several years ago, the Society of Vertebrate Paleontology (SVP)
added a Statement of Ethics to its bylaws to help the society and its
members handle ethical issues such as those raised by increasing
commercialization. Ted Vlamis, a fellow SVP member and amateur
paleontologist, summarized the SVP Ethics Statement and a subsequent
Joint Position Statement by the Paleontological Society as follows:
``The SVP Ethics Statement contains several principles that are
particularly noteworthy for their public policy implications. It begins
by recognizing that vertebrate fossils are usually unique or rare, and
that they are part of our natural heritage. The Ethics Statement
assigns to vertebrate paleontologists the responsibility of ensuring
that pertinent detailed contextual data are recorded when vertebrate
fossils are collected and notes that collection and preparation should
be done by properly trained personnel. The importance of proper
curation and the assurance of access for future researchers are
recognized by the Ethics Statements' provision that scientifically
significant vertebrate specimens should be curated and accessioned in
institutions charged in perpetuity with conserving fossil vertebrates
for scientific study and education. The Ethics Statement further
recognizes the responsibility of paleontologists to expeditiously
disseminate information to other paleontologists and to the general
public. Perhaps the most important part of the SVP Ethics Statement
from a public policy perspective is the conclusion that ``The barter,
sale, or purchase of scientifically significant vertebrate fossils is
not condoned unless it brings them into, or keeps them within, a public
trust'' (SVP, 1994).
In order to ensure that the SVP's public policy recommendations and
initiatives regarding fossils on federal lands were also reflective of
the wider paleontological community, the SVP initiated a dialogue with
the Paleontological Society. Together these two scientific societies
include over 2500 individuals, representing more than 90% of
professional paleontologists and a very large proportion of amateur
paleontologists. This dialogue culminated in 1999 when the two
societies issued the joint position statement Paleontological Resources
on U.S. Public Lands. The PS-SVP joint statement advocates public
policy which, like the SVP Ethics Statement, recognizes that fossils
are part of our scientific and natural heritage. It goes on to find
that fossils on public lands belong to all the people of the United
States and that, as such, they need special protection, and should not
be collected for commercial purposes. The joint statement concludes
that the two societies strongly support actions which ``protect fossils
on public lands as finite natural resources; encourage responsible
stewardship of fossils for educational, recreational, and scientific
purposes; promote legitimate access to, and responsible enjoyment of,
paleontological resources on public lands by the public and amateur
paleontologists for personal use, and by the professional
paleontological community, including professional paleontologists from
outside the U.S.; and bring fossils from public lands into public
institutions where they are available for purposes of education and
scientific research'' (PS and SVP, 1999). (Summary from Vlamis, 2001)
The SVP had a survey of American public opinion conducted by Mktg,
Inc., a market research firm that has conducted over 10,000 studies
since its founding in 1979. This telephone survey of 300 American
adults analyzed people's responses both to a hypothetical situation
involving the discovery of a fossil, and to a series of more general
questions pertaining to fossils. A random calling program was utilized
which gave every telephone in the US the same probability of being
called. The survey results have an accuracy rate of +/- 7%.
Several key points are worth noting, which demonstrate public
support for the principles embodied in S. 2727. 85.3 percent agreed
with the statement that that ``Fossils of animals with backbones are
part of our national heritage and should be protected in much the same
way that archeological remains (human artifacts) are now protected";
and, 88.0 percent agreed that ``If laws are created to restrict the
collection of fossils on public lands, the only people who should be
allowed to collect them are people with appropriate skills for doing so
and with a permit for that purpose. All the fossils that they find
should go into museums and universities prepared to protect them''
(Vlamis, 2001). The American people want our national heritage
preserved as a national treasure.
The membership of the SVP includes amateur as well as professional
paleontologists, and fostering cooperation between these groups is a
major mission of the SVP. We're pleased that S. 2727 puts no new
restrictions on amateur fossil collecting on federal lands--everything
an amateur collector can legally do today would still be legal after
the passage of S. 2727. At my own institution, the Denver Museum of
Nature and Science, we enjoy substantial cooperation among our
scientists and amateurs. Our more than several hundred amateur
volunteers devote over 30,000 hours each year of their time to our
institution. They have collected literally thousands of specimens from
public lands that have allowed our collections to grow significantly,
enabling more scientific study and public awareness of paleontology.
Last year alone more than a dozen of our volunteers either published a
scientific paper on fossils in a scientific peer-reviewed journal or
presented a paper at an annual meeting of a professional scientific
society. Some of these amateurs also published on an entirely new
dinosaur species previously undiscovered.
In a poll taken in 1991 of America's major museums, more than 49%
of the 1.8 million specimens of fossil dinosaurs and vertebrates in
their collections were from public lands. Of the overall total,
amateurs had donated more than 100,000 specimens to museums and
significantly less than 1% of the specimens came from commercial
collectors (Stucky and Ware, 1991).
One small but important suggestion we would make for improving S.
2727 would be to expand the definition of ``Federal lands'' to include
lands administered by the Army Corps of Engineers. There is a great
deal of important research occurring on these lands, and they are very
accessible to poachers.
I spoke earlier of some major problems that are occurring because
of the lack of a law like S. 2727. I'd like to conclude by telling you
about one example of the kind of cooperation between federal agencies
and paleontologists. Dinosaur paleontologist Jack Horner of the Museum
of the Rockies at Montana State University, Bozeman, is in the fourth
year of a field study in the Charles M. Russell National Wildlife
Refuge in eastern Montana. To date eight Tyrranosaurus rex skeletons
have been discovered. The field study is yielding valuable information
about this most famous of the dinosaurs and the environment in which it
lived. The work of the Museum of the Rockies has made it possible for
the National Museum of Natural History, Smithsonian Institution, to
collect one of these specimens. Thus, our National Museum will be able
to display an actual specimen of this celebrated American dinosaur for
the first time. The passage of S. 2727 will foster more and more
opportunities like this and inspire the long-term preservation of these
priceless national resources.
References
Bureau of Land Management. Press Release dated September 4, 2001.
Babbitt, B. 2000. Report of the Secretary of the Interior: Fossils on
Federal and Indian Lands.
Paleontological Society and Society of Vertebrate Paleontology. 1999.
Joint Position Statement by The Paleontological Society and The
Society of Vertebrate Paleontology on Paleontological Resources
on U.S. Public Lands.
Society of Vertebrate Paleontology. 1994. Bylaws, Article 9.
Stucky. R.K., and S. Ware. 1991. Questionnaire concerning fossil
collecting on Federal Lands. DMNH, Denver.
Vlamis. T.J., 2001, in Proceedings of the 6th Fossil Resource
Conference. Santucci, V.L. and McClelland, L. (eds) Geologic
Resources Division Technical Report NPS/NRGRD/GRDTR-O1/O1
September 2001.
appendix 1
Society of Vertebrate Paleontology By-Laws on Ethics
Article 9. Statement of Ethics
Several goals for the Society of Vertebrate Paleontology follow
from its mission statement (Constitution Article 1): to discover,
conserve, and protect vertebrate fossils and to foster the scientific,
educational, and personal appreciation and understanding of them by
amateur, student and professional paleontologists, as well as the
general public. Fossil vertebrates are usually unique or rare,
nonrenewable scientific and educational resources that, along with
their accompanying contextual data, constitute part of our natural
heritage. They provide data by which the history of vertebrate life on
earth may be reconstructed and are one of the primary means of studying
evolutionary patterns and processes as well as environmental change.
It is the responsibility of vertebrate paleontologists to strive to
ensure that vertebrate fossils are collected in a professional manner,
which includes the detailed recording of pertinent contextual data
(e.g. geographic, stratigraphic, sedimentologic, taphonomic).
It is the responsibility of vertebrate paleontologists to assist
government agencies in the development of management policies and
regulations pertinent to the collection of vertebrate fossils, and to
comply with those policies and regulations during and after collection.
Necessary permits on all lands administered by federal, state, and
local governments, whether domestic or foreign, must be obtained from
the appropriate agency(ies) before fossil vertebrates are collected.
Collecting fossils on private lands must only be done with the
landowner's consent.
Fossil vertebrate specimens should be prepared by, or under the
supervision of, trained personnel.
Scientifically significant fossil vertebrate specimens, along with
ancillary data, should be curated and accessioned in the collections of
repositories charged in perpetuity with conserving fossil vertebrates
for scientific study and education (e.g. accredited museums,
universities, colleges, and other educational institutions).
Information about vertebrate fossils and their accompanying data
should be disseminated expeditiously to both scientific community and
interested general public.
The barter, sale, or purchase of scientifically significant
vertebrate fossils is not condoned unless it brings them into, or keeps
them within, a public trust. Any other trade or commerce in
scientifically significant vertebrate fossils is inconsistent with the
foregoing, in that it deprives both the public and professionals of
important specimens, which are part of our natural heritage.
appendix 2
Joint Position Statement by The Paleontological Society and The Society
of Vertebrate Paleontology on Paleontological Resources on U.S. Public
Lands
The Paleontological Society and The Society of Vertebrate
Paleontology are committed to increasing scientific knowledge,
educational benefits, and appreciation of the natural world based on
fossils--for everyone--child or adult, the general public, or amateur
or professional paleontologists. Fossils are an invaluable part of our
scientific and natural heritage.They yield detailed information about
the history of life and of our planet, and provide lessons for the
modern world and our future.
Many important fossil localities occur on U.S. public lands and
belong to all people of the United States, including future
generations. The Society of Vertebrate Paleontology and The
Paleontological Society therefore support the development of policies
and practices that can be used by different federal agencies to
regulate the collection of fossils on U.S. public lands in an
appropriate, clear, and consistent manner.
Many fossils are common (for example, many non-vertebrate fossils)
and should be allowed to be collected--in a responsible way--by any
amateur or professional paleontologist, thus allowing them to
experience and benefit from the excitement of discovery, recovery,
identification and study.In particular, because of the benefits that
derive from increased public appreciation of fossils, it is important
that the participation of amateurs in paleontology is not discouraged
by Federal policies and practices.
Other fossils are rare (for example, many vertebrate fossils and
some non-vertebrate fossils), and require special protection,
especially from destruction by vandalism or commercial exploitation. In
particular, because of the dangers of overexploitation and the
potential loss of irreplaceable scientific information, commercial
collecting of fossil vertebrates on public lands should be prohibited,
as in current regulations and policies. The commercial collecting of
other paleontological resources on U.S. public lands should be strictly
regulated by permit through the appropriate land management agencies.
Regulations and polices regarding the collection of paleontological
resources from U.S. public lands should be strictly enforced.
In this context, the Council of The Paleontological Society and the
Executive Committee of the Society of Vertebrate Paleontology strongly
support actions that:
protect fossils on public lands as finite natural resources;
encourage responsible stewardship of fossils for
educational, recreational, and scientific purposes;
promote legitimate access to, and responsible enjoyment of,
paleontological resources on public lands by the public and
amateur paleontologists for personal use, and by the
professional paleontological community, including professional
paleontologists from outside the U.S.; and
bring fossils from public lands into public institutions
where they are available for purposes of education and
scientific research.
Senator Akaka. Thank you very much. We both have questions
for you.
In case I am wrong, Mr. Kearney, I do not believe you had
any comments on S. 2727.
Mr. Kearney. Yes, sir, I do. Inadvertently, I did not go on
to that statement when I completed my first one. So I
absolutely do, yes, sir. Thank you very much.
Senator Akaka. Well, we look forward to having that one.
Mr. Kearney. Thank you. And I do.
Senator Akaka. Now my first question is for the two
administration witnesses, and that concerns S. 2727. As your
testimony notes, this bill incorporates the recommendations
from the report both of your agencies submitted to Congress a
few years ago. I want to make sure that I understand the
administration's position on this bill.
My understanding is that the administration supports the
fundamental concept of the bill in establishing a comprehensive
policy for protecting fossil resources on Federal lands. But
you have a few technical concerns with some definitions in the
bill. Is that correct, Mr. Kearney?
Mr. Kearney. Well, yes, sir. As we said in our testimony,
we generally support the purposes of the bill. We would like an
opportunity to more fully review it and submit some of the
specific suggested changes and improvements that we have
regarding it and put those in writing, matters relating to the
savings clause as it relates to mineral rights and grazing, for
example, some of the definitions. Yes, sir, that is correct.
Senator Akaka. Ms. Estill.
Ms. Estill. That is correct. We have one sticking point
that we would like to work through in writing that has to do
with the amount of fines and the use of those funds once
collected.
Senator Akaka. I have a question for all of you. Under S.
2727, there is broad authority for the casual collector to pick
up invertebrate fossils. Is this exemption too broad so that it
might encourage small scale or clandestine excavation? Do you
have any suggestions to improve the wording of this exemption?
For example, should the bill differentiate between surface and
subsurface casual collecting?
Mr. Kearney.
Mr. Kearney. That is certainly something we would be happy
to take a look at in preparation for the hearing. It was not a
focus of our concern. However, there is one point I would take
the opportunity to raise with respect to that provision. The
Park Service does not currently allow for casual collection.
Rather, all of their collection is by permit, and we would like
to ensure in the clarification, as we work through the
legislation, that that is continued and preserved with respect
to their existing practice.
Senator Akaka. Ms. Estill.
Ms. Estill. The Forest Service currently does allow casual
collecting by amateurs without permit, but there is not
anything that really formally recognizes this activity. We see
S. 2727 formally allowing it, and we see that as a good thing
for the casual collector.
In terms of how much is enough and how much is too much, I
thought it was fairly clear that it did not allow ground
disturbing activities. So it would have to be those that are
lying on the surface, and you would not allow the digging out
without permit. But we would be happy to work with you on that,
too.
Senator Akaka. Dr. Stucky.
Dr. Stucky. I think as currently stated the bill is fairly
comprehensive and direct. I do think that it recognizes on the
part of land managers that some current practice in terms of
restricting some excavation, major excavation, could occur.
I also think that it is very important to emphasize,
though, that in terms of the amateur collector, you know,
invertebrate fossils are a major part of the hobby collecting
and so on. So we would be very supportive of amateurs
collecting invertebrate fossils.
Senator Akaka. Let me ask: Senator Thomas, do you have any
questions?
Senator Thomas. Well, I do. Of course we now have a vote
pending.
But what you just said, Doctor, is what I think everybody
is for, preserving these things and so on. But how do you
define these things? I have a letter here from a group in
Wyoming that protests the proposed legislation which would
prohibit rock hounding on our public lands. Much of Wyoming was
once an inland sea; much exposed geology there. All vertebrate
fossils are not as rare as your legislation suggests.
At any rate, she says, ``Do not take rock hounding away
from us.''
How are we going to define this? And how are you going to
enforce it? I am all for it, but I am very skeptical of how you
decide where you stop, where you begin. If it is just
underground work, maybe so. If it is laying on the surface, who
is going to say whether that is--how do you define these
things?
Dr. Stucky. First of all, I do not think the legislation
changes any practice as it currently occurs on public lands
today.
Senator Thomas. But it does. There is none practically. How
many prosecutions have you had?
Dr. Stucky. I know from my standpoint, I have some idea
about the----
Senator Thomas. Tell me.
Dr. Stucky. There have been perhaps a dozen prosecutions;
you know, the number of places where there have been specimens
taken from public lands, though, 731 cases on national park
lands over 5 years.
Senator Thomas. But you have--it has been against the law.
I mean, you have been able to fine? How many times have they
been fined? You have to be able to prove it and so on. And I
just am not sure. This seems like it is awfully broad. And I am
all for it, but how are you going to enforce it? I have already
watched the Forest Service, for instance, try to enforce
staying on the highway. You cannot do it. You do not have
enough people.
Dr. Stucky. You really can. I mean, the law essentially
raises an ethical standard in terms of how we should protect
our national heritage. I think that is a really important
distinction.
For one thing, there is the ability on the part of the land
manager and most people, and certainly most hobbyists, to
recognize the difference between a significant vertebrate
fossil and invertebrate fossils and fossil plants. They occur
in different kinds of rocks, for the most part. And they are
fairly easy to recognize based upon commonly understood anatomy
by the amateur collectors.
Senator Thomas. And you do not think they understand it
now?
Dr. Stucky. Yes, I do think they do.
Senator Thomas. Then what difference is this going to make?
Dr. Stucky. Essentially for those who are taking those
specimens from public lands that are, you know, worth a lot of
money and essentially stealing them from the public lands; when
you have specimens like the Allosaurus that is in my testimony
that was taken, virtually taken, from public lands and worth
millions of dollars and taken from our public treasury.
Senator Thomas. If I were in that gang and I could get $7
million for it, I would not worry about the $100,000 you are
going to fine me.
Dr. Stucky. For most people, it will represent an ethical
standard.
Senator Thomas. I understand. I just think it is so broad
that it distresses me a little bit. I think there needs to be
more definition of what it is you are preserving, where it is
you are preserving it, and those kinds of things. And I think
this lady has a point. I do not want to be afraid to go out and
look for rocks somewhere on the BLM in Wyoming.
Ms. Estill. The point is well taken. I think that what--in
response to your question about how many have we prosecuted in
the Forest Service on the National Grasslands, it is 6, which
is not a whole lot.
Senator Thomas. No, it is not.
Ms. Estill. And part of the problem is that the laws that
we currently operate under really are not very broad in the
treatment of paleontological resources. We have the one that
sort of protects archeological resources, if they are tied in
with people, if they are tied in with archeological resources.
So maybe a cave bear that is associated with people or with a
cave, because the Cave Act also protects fossils that are
associated with a cave.
But those fossils of dinosaurs are not covered by either,
unless the dinosaur happens to be living in a cave. So we have
been--we have run into an issue of having difficulty in
prosecuting cases, because there is this fuzzy space. And one
of the things that we like about this bill is that it does help
to clear up that fuzzy space.
In terms of the average, you know, a person that likes to
go out and collect fossils, we sort of feel like this
strengthens their ability to do it on national forests and
grasslands. Right now, it is kind of wishy-washy and very much
sort of a line officer call. This actually puts into statute
that it is permissible without permit for a recreational user
to go out and collect invertebrates and plants.
Senator Thomas. You are familiar with, I guess it is BLM
land, but out around Kemmerer, Wyoming in the Fossil Buttes,
they have been enforcing this for years, not only the Federal
agencies, but also the local agencies.
At any rate, well, I agree with you. I just think maybe we
need to take a look at this and see if we cannot define things
a little more clearly, so that people are comfortable with what
they can do and what they cannot do and so on.
Ms. Estill. Right.
Senator Thomas. Thank you, Mr. Chairman. I am ready to go
vote.
Senator Akaka. Do you have any further questions?
Senator Thomas. No, sir, I do not.
Senator Akaka. As you can tell, we have a vote that is
pending at the present time.
Let me ask you another question, Mr. Kearney. In your
testimony, you raise the general question about the forfeiture
and criminal penalty provisions of S. 2727.
Mr. Kearney. Yes, sir.
Senator Akaka. Do any of you have any specific comments or
suggestions about these provisions?
Mr. Kearney. As we indicated in the testimony, we would
like to make--we would like to work with the committee and
submit to you in writing some additional suggestions or ways to
make sure that it achieves its intended purpose.
Senator Akaka. Yes. I understand that fossils collected
currently under permit are considered government property and
must be deposited into an approved repository. Could you
explain the criteria or requirements for the becoming an
approved repository?
Mr. Kearney. I would be happy to provide that with you in
writing for our purposes, Senator. I am not immediately
familiar with what those criteria are.
Senator Akaka. Do any of you have any other comments to
make about any of the bills?
Ms. Estill.
Ms. Estill. No, sir.
Senator Akaka. I have a few questions remaining. Understand
also that we have two votes pending, which will take some time.
So what I will do is, if we need to, submit the questions for
you. But I want to thank you so much for coming to this
hearing. Your responses have been helpful to us. And I want to
thank you again for being here.
With that, the hearing record will remain open for 2 weeks.
If anyone wishes to submit additional comments or materials to
be included in the record, you may do so during that time.
Thank you again for being here.
The hearing is adjourned.
[Whereupon, at 3:05 p.m., the hearing was adjourned.]