February 22, 2009

Touch a rock and get mugged by the feds

by J.D. Tuccille

A few years ago, I was backpacking in an Arizona canyon where the sun didn't reach our camp until well after we'd rolled out of our sleeping bags. Desperate to get warm, a friend and I decided to scale the canyon wall to find a patch of warm sunlight and see the view. We soon discovered that the rocks were speckled with fossils -- mementos of long-gone life. Somewhere, I have a souvenir from that climb -- a keepsake that, under new legislation, could could get my truck and camping gear confiscated even without a trial, and my friend and I imprisoned for five years with one.

The new legislation is the Paleontological Resources Preservation Act, passed in the Senate as Subtitle D of S.22, the Omnibus Public Land Management Act of 2009, and pending in the House. Under the new law, "A person may not 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 jumping through hoops created by the federal government. Do so, and you could face up to five years in federal prison.

Strictly speaking, that souvenir of mine might not be illegal under the new bill. The act does allow for "the collecting of a reasonable amount of common invertebrate and plant paleontological resources for non-commercial personal use." But that reasonable amount "shall be determined by the Secretary." Just hope the current officeholder's hemorrhoids aren't acting up the day he or she decides what you can tuck in your pocket during the course of a hike without facing the wrath of the federal government.

"Our government does not need to put scientists in jail and confiscate University vans. We can visualize now a group of students unknowingly crossing over an invisible line and ending up handcuffed and prosecuted."
And do hope for leniency. Because that five years in prison may not be the worst of it. At least a criminal conviction requires a trial before a jury that's occasionally unimpressed by arbitrary and intrusive federal laws. If the feds don't want to bother proving their case in court, they can just steal your car, truck, camping eqipment and any other gear you may have.


Section 6308 says:

(b) Forfeiture- All paleontological resources with respect to which a violation under section 6306 or 6307 occurred and which are in the possession of any person, and all vehicles and equipment of any person that were used in connection with the violation, shall be subject to civil forfeiture, or upon conviction, to criminal forfeiture.
You noticed that "subject to civil forfeiture, or upon conviction, to criminal forfeiture" didn't you? That's a example of a notorious practice called "civil asset forfeiture," which means the government gets to steal your stuff without proving a case against you, and you have to sue to get it back. Oh, and the law also says the government gets to keep or dispose of the stolen goods as it wishes, so there's an incentive to steal as much and as often as possible.

Civil asset forfeiture has a disturbing history of abuse for the benefit of government agencies, including actual highway robbery. Some law-enforcement agencies have become notorious for stopping cars, seizing cash and goods without ever even pretending to bring criminal charges, and returning the loot only if the folks passing through bring suit and win a court order. The situation got so bad a decade ago that it culminated in a bipartisan piece of legislation, the Civil Asset Forfeiture Reform Act of 2000 (PDF). Compromise that it was, the bill softened some of the worst abuses of forfeiture, but left the practice in place.


Tracie Bennitt, president of the Association of Applied Paleontological Sciences, points out that the bill also threatens prison time for any person who might "make or submit any false record, account, or label for, or any false identification of, any paleontological resource excavated or removed from Federal land."

That's a problem, says Bennitt, because "[w]hat you find and label in the field may not be what you find as preparation is undertaken in the lab. Penalties for misidentification of fossils will place every museum in jeopardy. There is not one museum that is free from labeling errors on specimens on exhibit or in collections."

Ultimately, says Bennitt, "Our government does not need to put scientists in jail and confiscate University vans. We can visualize now a group of students unknowingly crossing over an invisible line and ending up handcuffed and prosecuted. An honest mistake is just that and should be treated accordingly."

Yes, "honest mistakes" should be treated as such, but so should simple rock gathering and poking in the dirt. If the feds want to target real pirates who are going after fossils on public lands with front-end loaders, they need to do so with weapons that don't threaten hikers, scientists and hobbyists.

And they need to entirely abandon the monstrous practice of civil asset forfeiture.

Oh, and if the feds want that souvenir back, they should feel free to send somebody around to collect it. Just have him stand back about 90 feet. That's the distance from home plate to first base. I can throw that far.