January 2012

At the same time there has been so much talk of government nationalization of troubled big banks, a bill quickly snaking through Congress would allow the feds to expropriate cars, bicycles and other “vehicles and equipment” of everyone from amateur collectors of rocks to kids going on scavenger hunts.

In the Omnibus Public Land Management Act of 2009, which passed the Senate (S. 22) in January and is up for a vote in the House as early as this Wednesday, a “forfeiture” provision would let the government confiscate “all vehicles and equipment of any person” who disturbs a rock or a bone from federal land that meets the bill’s broad definition of “paleontological resource.” The seizures could take place even before a person and even if the person didn’t know they were taking or digging up a “paleontological resource.” And the bill specifically allows the “transfer of seized resources” to “federal or non-federal” institutions, giving the government and some private actors great incentive to egg on the takings.

Groups representing those from scientists to rock collectors to other fossil enthusiasts have warned of ominous consequences that could criminalize the exploration and learning about natural history ironically in the name of protecting nature. According to Tracie Bennitt, president of the Association of Applied Paleontological Sciences, the bill’s language is so vague and the penalties such as forfeiture so severe that it could allow the government to “put scientists in jail and confiscate university vans.” In a letter on the bill to members of Congress, Bennitt warns, “We can visualize now a group of students unknowingly crossing over an invisible line and ending up handcuffed and prosecuted.”

The area of concern is Subtitle D of the bill called the “Paleontological Resources Preservation Act.” The provisions in this subtitle make it illegal to “excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any paleontological resources located on Federal land” without special permission from the government.

A “paleontological resource” is broadly defined in the bill as “any fossilized remains, traces, or imprints of organisms, preserved in or on the earth’s crust, that are of paleontological interest and that provide information about the history of life on earth.” Penalities for violations include up to five years in jail, and, as previously stated, all vehicles and equipment “used in connection with the violation” are subject even before trial “to civil forfeiture, or upon conviction, to criminal forfeiture.”

Among the problems, critics explain, is that the language is so broad that merely picking up rocks under this bill could be found guilty of “excavating” or “removing” a “paleontological resource.” There are numerous rocks, stones, and other objects of nature that contain fossilized imprints and, in the bill’s language, “are of paleontological interest and that provide information about the history of life on earth.” In fact, it is likely the most rocks that people pick up would meet this definition.

So people from mining companies to amateur geologists known as “rockhounds” to children gathering stones on field trips could be at risk for unintentionally violating this bill should it become law. The law does purport to allow an exception for a “resonable amount” of “casual collecting,” but then practically negates that excepion by saying that the “reasonable amount” shall be enitirely “determined by the Secretary” of Interior or Agriculture.

In an analysis of a similar bill in previous session of Congress, the policy group Partnership for America noted this scenario, “If a person were to be out hiking and picked up a rock as a souvenir, an enforcement officer who discovers this situation, at his or her discretion, could seize the equipment and the vehicle in use by the person or family at the time of the ‘offense.’” The analysis concluded, “The legislation may sound benign on its surface, yet it could have very dire unintended consequences for mining companies, rock hounds (geology enthusiasts) and average citizens who enjoy our national forests.”

One of those consequences is the civil forfeiture provision in Section 6308, which would leave those accused without their cars or other property until the trial was completed — basically the property would be guilty until proven innocent. As described by the Partnership for America analysis: “Even if a person eventually prevails in their case should they be prosecuted under this Act, their family would be without the use of the equipment and vehicle until the case is adjudicated, which could be months or even years, creating an extreme hardship in many cases. The government would likely try to obtain a guilty plea in exchange for a reduced penalty or the return of some of the personal property, which many innocent citizens would accept to avoid the cost and inconvenience of a trial.”

In fact, civil forfeiture had been so abused in drug cases — with reports of cops driving around Porsches of suspected drug offenders –that a group of conservative and liberal congressmen drafted a bill to reform the process. The late House Judiciary Committe Chairman Henry Hyde, R-Ill. and then-Rep. Bob Barr, R-Ga., joined with Rep. (and current Judiciary Committee Chairman) John Conyers, D-Mich., and Rep. Barney Frank, D-Mass., to sponsor the Asset Forfeiture Reform Act that was signed into law in 2000. The law increased the government’s burden of proof before it could engage in the pre-trial confiscation of the property of the accused.

Describing the situation before the law was passed, Hyde wrote in his Cato Institute book Forfeiting Our Property Rights, “Civil asset forfeiture has allowed police to view all of America as some giant national K-Mart, where prices are not just lower, but non-existent — a sort of law enforcement ‘pick-and-don’t-pay.”

But the pending Omnibus bill would unfortunatley take U.S. civil liberties a big step back to the situation before the 2000 reforms passed. And as Bennitt of the Association of Applied Paleontological Sciences points out in her letter, it also creates the vaguely defined crime of “submit[ting] any false record, account, or label for, or any false identification of, any paleontological resource excavated or removed from Federal land.”

But in geology, false records can be unintentional and are often unavoidable. As Bennitt notes, honest errors in labeling fossils are almost inevitable even for the top museums. She writes: “Paleontology is a field that is not set in stone. What you find and label in the field may not be what you find as preparation is undertaken in the lab.”

She adds that “penalties for misidentification of fossils will place every museum in jeopardy,” because “there is not one museum that is free from labeling errors on specimens” in some of its exhibits or collections.

Bennitt concludes that the bill would have the perverse effect of limiting scientific inquiry and knowledge of natural history. She notes that “museums and universities collecting on public land do not have the time, money or staff to collect everything they see. These specimens end up as dust as they erode away.” Amateur and professional fossil collectors have helped scientists piece together natural history, and this bill may lock thier skill out of the process.

At a time when the federal government should be busy catching and jailing the Madoffs, Stanfords, and other alleged fraudsters who swindled Americans out of billions, it seems a particular waste of time to hunt down nature enthusiasts who may have inadvertently disturbed a “palentological resource.” And it would indeed be a tragedy if a rock hunter’s bike or car were “nationalized” before the first bad bank was even laid a finger on.

The House will like be voting this week on the bill as S. 22, the exact same “Omnibus Public Land Management Act of 2009″ that passed the Senate with these provisions. Some reports have the bill being scheduled for a Wednesday vote, but it may also be Thursday or Friday. If it passed the House, it will likely go straight for signature to President Obama, so this may be the last chance to get changes to the bill.

To express your views to your Representative or Senator in Congress, you can call the Capitol switchboard at (202) 224-3121 or 225-3121. Ask the operator to connect you to the office of your member of Congress.