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ARTICLES

 

 

 

Rockhounds and the Withdrawal of Lands from Utah's National Monuments

July 1, 2018
by Andrew Hoekstra
Editor, Delvers Gem & Mineral Society, Bellflower, CA
Paleontological Resources Specialist, California Federation of Mineralogical Socities, Inc.

 

Utah BLM is no fan of Rockhounds

The continued reductions in federal lands open to rock collecting (and federal land is the bulk of land potentially open to Rockhounds in the western states) is not the result of statutes (legislation passed by our elected representatives). It is the result of the actions and rule-making of bureaucrats at agencies such as the Bureau of Land Management. Their actions are sometimes contrary to the intent of statutes, even on occasion in conflict with the letter of law (i.e., the APA), and thus arbitrary.

Many BLM employees seem to consider rock collecting a harmful activity. This attitude, combined with the agency's authority to write rules, has resulted in more and more restrictions placed on non-commercial collecting of modest amounts of rocks, minerals, and common fossils, including petrified wood. However, rules written under applicable laws, including the Paleontological Resources Act of 2009 (PRPA) and the Petrified Wood Act of 1962, are not unfriendly to hobby collecting. In fact, the sponsors of the PRPA stated that it was not intended to interfere with rock collecting, and the study prepared for Congress mentions the positive effects of amateur fossil collecting. The Petrified Wood Act protects the public's right to collect petrified wood on public land. Unfortunately, the attitude of many BLM employees might be summed up by what one high-ranking official told me: "If the management report mentions any geological or paleontological resources, then collecting will be banned."

BLM's Catch-22

Any large piece of land has rocks and fossils. Reports prepared by BLM will always mention these resources, so, don't be surprised if hobby collecting is banned on any and all land with a management plan administered by the BLM.* Paradoxically, the only land that would be open for collectors is land lacking any geological or paleontological resources, i.e. you can only collect where there is nothing to collect.

Rockhounds who supported the President's executive order to shrink Utah's National Monuments with the expectation that accommodation of hobby collecting would be restored now have good reason to feel betrayed. Commercial interests are being accommodated, but not those of Rockhounds. BLM has made arbitrary decisions that conflict with the Rulemaking process stipulated under the APA (see below). If the agency is going to be persuaded to revise its customary ad hoc management practices, it's going to take a sustained campaign of outreach and pressure, bringing to bear the voices of the Rockhound community represented by societies and regional federations of the AFMS. In other words, the community will need to assert itself as a Stakeholder that has special interests, particular expertise and authority on the subject of amateur collecting of geological and mineral resources.

* Southern California's BLM has a more tolerant view of hobby collecting; the agency regards it as a low-impact recreational activity.

How it's supposed to work

After a Statute is passed into law by Congress, the specific rules and regulations for implementing it are then drafted by the agency responsible for administering it. The Administrative Procedures Act of 1946 (APA) requires the agency to "give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments" (5 U.S.C. § 553(c) (2006)), especially, when a person's own interests might be affected or when a person might have special expertise whereby constructive input could improve the Final Proposed Rule.

Under § 551. Definitions, (2), " 'person' includes an individual, partnership, corporation, association, or public or private organization other than an agency.") Federal agencies recognize a "Stakeholder" as a special category or group of "interested persons" who represent special interests or have authority or particular expertise on a subject. Are 501(c)(3) non-profit organizations such as gem-minerals societies "interested persons" aka "Stakeholder"? Yes.

The comment period under the Rulemaking process of the APA is federally mandated to provide opportunity for "interested persons" to submit input on a proposed rule or plan. The Federal Register is the vehicle for administering the Rulemaking process and publishing relevant documents, procedures and timelines. The Federal Register reiterates the APA: "The proposed rule and the public comments received on it form the basis of the final rule." (emphasis added)

According to the Rulemaking process posted in the Federal Register:

The notice‐and‐comment process enables anyone to submit a comment on any part of the proposed rule. This process is not like a ballot initiative or an up‐or‐down vote in a legislature. An agency is not permitted to base its final rule on the number of comments in support of the rule over those in opposition to it. At the end of the process, the agency must base its reasoning and conclusions on the rulemaking record, consisting of the comments, scientific data, expert opinions, and facts accumulated during the pre‐rule and proposed rule stages."

 

 

President Trump's executive order (Proclamation 9682; December 4, 2017) shrank the Grand Staircase-Escalante National Monument (GSENM) by about 47% and the Bears Ears National Monument (BENM) by about 85%. The Bureau of Land Management (BLM) has acted quickly to implement the president's order. The new boundaries for the two downsized monuments are shown in BLM's online GSENM map and BENM map. (Figs. 1 and 2) The area withdrawn from drawn from the GSENM contains once popular rock collecting sites that have been closed to hobby collectors since 1996, when the monument was created.

Can we now collect rocks in the areas withdrawn
from the Grand Staircase-Escalante NM? – No, we still can't!

To answer this question took four weeks of telephone calls to the Utah BLM (I hope they are better prepared to answer the public now). I was referred to specific BLM employees who do not answer their phone/email nor return calls; then I was given contradictory answers. But after continued effort, I can now provide their definitive answer: No!

So, why can't the public hobby collect on the lands removed from the monument? The BLM continues to enforce a ban on hobby collecting per the previous management plan – even on land now removed from the monument – until a new management plan for these lands is approved (along with new management plans for the remaining monument). The removed land is not reverting to its pre-monument status.

Suffice it to say, implementation of the presidential order has accommodated commercial interests, but has not helped Rockhounds. Left unanswered is my question: by whom and by what right has a new management "unit" been created for the land removed from the monument? (This "removed land" unit still lacks a name). Although some at the BLM claimed this is usual procedure, others told me it is not normal.

It seems quite likely that a new management plan will restrict rock collecting "as necessary to protect resources within the adjacent monument," a BLM employee said to me. If you have an objection to this, prepare to comment on the proposed management plans when they are published this summer. At the bottom of this page are links to the ongoing bureaucratic process. The initial call for public input is already over, and I believe that few comments were made by Rockhounds. When the BLM publishes the proposed new management plans, expected by this August, there will be a short period for the public to comment.

There is no statute or general rule that bans rock collecting within BLM national monuments (as BLM employees stated, and this is true), but in every single instance the BLM has implemented such a ban in their management plans, for each and every monument. Some Utah BLM employees with whom I spoke seem to think of Rockhounding as destructive. How does hobby collecting threaten the "critical cultural and historical resources" being protected? They could not answer that. Now they want to ban hobby collecting outside the monument. Why – since the vertebrate fossils and archaeological resources are already fully protected by law?

The situation for the Bears Ears National Monument is somewhat different. You can still collect, and not only on the lands removed from that monument but also within the monument – until a management plan takes effect. The difference is due to there being no existing management plan for the BENM, which was created in December of 2016 by President Obama. But when these management plans are drawn-up (and they are expected to be published soon), they are likely to prohibit or restrict Rockhounding, so Rockhounds will need to participate in the public comment process, if they are to have any hope of retaining collecting privileges.

 

Fig. 1: Draft Bears Ears Boundary Modification.

 

Fig. 2: Grand Staircase Escalante Boundary Modification.

 

Resources

https://eplanning.blm.gov/epl-front-office/projects/lup/94706/140150/172254/Planning_Process_and_Public_Involvement_Poster.pdf

https://eplanning.blm.gov/epl-front-office/projects/lup/94706/130831/159627/2018-00518_GSENM_NOI_01162018.pdf

https://eplanning.blm.gov/epl-front-office/eplanning/planAndProjectSite.do?methodName=dispatchToPatternPage¤tPageId=141293

https://eplanning.blm.gov/epl-front-office/eplanning/planAndProjectSite.do?methodName=renderDefaultPlanOrProjectSite&projectId=94706

 

 

Cite this article: A. Hoekstra. 1 July 2018. Rockhounds and the Withdrawal of Lands from Utah's National Monuments. San Diego Mineral & Gem Society, Inc. Available online at: http://www.sdmg.org/articles/201807/Rockhounds_and_the Withdrawal_of_Lands_from_Utah_National_Monuments/.

This article is reproduced by permission. The original version appears in The Delvings, vol. 71 no. 7  July 2018, p. 3, the bulletin of the Delvers Gem & Mineral Society, Bellflower, CA.

 

 

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