Monday, February 26, 2018

Reducing a Monument - On the Ground Question

So the past two months have been super hectic, and the last week even more so. Between proposing monument management plans, BLM permit reports getting wrapped up, research, media, and of course my actual day job that pays my bills I feel like I haven't had a chance to get my feet under me and write. Fielding these media questions, though, has helped focus some of the thoughts going through my head. I generally, in my media discussions, tend to steer away from politics and focus on the science which might make for boring copy but keeps my employers happy. Anyway, one of the Frequently Asked Questions I've been getting from the Post, VICE, Salt Lake Tribune, Washington Post, National Geographic, and all the other outlets is, "what does removing the monument actually do?" That's a multi-faceted question without a super-easy answer, but I think it is worth tackling on multiple levels. Today, what that means from the standpoint of a monument without a monument management plan. This is kinda dry, but important. Please bear with me as we dive into the resource management aspect of this.

DISCLAIMER: I am not a lawyer nor do I play one on TV. I am not a land manager either, nor do I speak for any of them. This is just the way I am seeing things and interpreting the various laws.

To begin with, fossils have been widely protected across all public lands under the Antiquities Act of 1906 as "objects of antiquity," but are not explicitly called out in the law, so this protection has been up to some interpretation over the years. In any case it has been understood that for over 100 years fossil remains have some sort of "special" status beyond that of mere rocks or geological oddities.

The next major piece of legislation is the Archaeological Resources Protection Act of 1979, and it has been widely mentioned in media recently (especially from the vantage point of those looking to defend the reductions). Interestingly, ARPA specifically excludes fossils from protection. From ARPA, 16 U.S.C. 470bb, Definitions, Section 3" Nonfossilized and fossilized paleontological specimens, or any portion or piece thereof, shall not be considered archaeological resources, under the regulations under this paragraph, unless found in an archaeological context. No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age."

Legislatively the most recent thing, the Paleontological Resources Preservation Act of 2009 does lay out specific protections and rules for fossils, including vertebrates, invertebrates, and plants. Each land management agency is tasked with coming up with PRPA-compliant management plan. Under PRPA, casual collection of invertebrate and plant fossils found on the surface is allowed from public. The collection of vertebrate fossils requires a permit.

The two biggest issues, in terms of actual on-the-ground protection right now (instead of in a decade when there is a Monument Management Plan implemented and in the FR) is that some fossils are indeed no longer protected when a monument's boundaries are shrunk; specifically plant and invertebrate fossils (which are really important for interpreting the ancient environment and can be highly significant in and of themselves). Anyone can legally collect those now, whereas in the 2016 proclamation it said, " Warning is hereby given to all unauthorized persons not to appropriate, injure, destroy, or remove any feature of the monument and not to locate or settle upon any of the lands thereof." Those items were protected from collection then, and now they are not. Additionally the monument provides protection from development (specifically commercial development), whereas multi-use BLM lands require monitoring and mitigation of projects (roads, powerlines, mining, hiking trails, etc.) that might disturb fossil resources. The fossils do not have the same level of protection on multi-use BLM lands as they do as "objects to be conserved" in a monument where they are an explicit priority for management.

Is it accurate to say that fossils have lost protections under the Trump proclamations? Yes. Some fossils are explicitly no longer protected in any substantive way (such as invertebrate fossils and plants), while others (vertebrates) retain their PRPA protections but don't enjoy a special status among the other possible uses for the land. So all fossils from an excluded area lose some protections, and some fossils lose virtually all of their protections. That nuance has been lost in many of the articles that have come out about some of our BENM work recently so I figured I would put this out there and hope that maybe those of you who are interested will find this post educational.