High court calls road claim 'completely nonsensical'

RS2477 • Utah Supreme Court finds state road claims have not run out of time, allowing litigation to proceed.

By Brian Maffly
The Salt Lake Tribune

In a pivotal ruling for Utah's legal battle to control thousands of routes crossing federal land, a divided Utah Supreme Court has held that these road claims have not run out of time under an obscure state law.

Joined by the Southern Utah Wilderness Alliance, federal lawyers had argued the statute in question barred "quiet-title" claims after seven years, meaning that Utah's claim to more than 12,000 routes covering 35,000 miles would have been extinguished as long ago as 1983.

Chief Justice Matthew Durrant wrote that such a result would be "absurd" and deviate from whatever lawmakers intended when they passed the relevant law, known as a statute of repose.

The United States' arguments "would effectively deprive the State of its" claims to thousands of routes — including some that may have existed and been used for decades, Durrant wrote in the ruling handed down Thursday.

The high court called such a result "completely nonsensical" and "so overwhelmingly absurd that no rational legislator could ever be deemed to have supported" it.

Durrant was joined by Justices Christine Durham and Deno Himonas.

A ruling the other way, in favor of the federal government's stance, could potentially have put an end to the litigation involving 22 separate lawsuits, one for each Utah county seeking title to these routes within their borders.

Utah Attorney General Sean D. Reyes applauded the ruling, calling it a "common-sense decision" that re-invigorates the road claims asserted under RS2477, a now-repealed frontier-era statute that gave counties rights of way to roads they cut across the public domain in an effort to encourage development in remote areas of the West.

Some of these disputed roads are important thoroughfares, but environmentalists say many are obscure tracks that serve no purpose other than to justify counties' efforts to push roads and motorize access into lands proposed for wilderness.

"The Court correctly recognized the absurdity of the federal government's arguments, which have now added two years of delay and taxpayer expense to the State's efforts to obtain the title to roads that federal law has long promised," Reyes said. "I hope the Court's decision convinces the United States now to work collaboratively and quickly with Utah and its Counties to resolve these title claims."

But the court's dissenters rejected the idea that the federal government's interpretation would have produced an absurd result, or even an uncommon one.

Appellate judges Frederic Voros and Kate Toomey sat in for Justices John Pearce and Thomas Lee, who had recused themselves from the case. While concurring with much of the majority opinion, Voros's dissent called it "the most expansive application of the absurdity doctrine in American law."

Voros noted that the allegedly absurd result actually reflects prevailing law nationwide from the passage of the Mining Act in 1866 until the passage of the Quiet Title Act in 1972.

"If that rule of law in fact mandated absurd results, surely in 106 years some court somewhere would have noticed," Voros wrote. "Yet no party cites, nor am I able to discover, any court questioning the rationality of the rule of law that we today declare absurd."

Thursday's ruling allows lawyers to get back to the arduous task of litigating the validity of the state's road claims that have been stewing in U.S. District Court since 2011. The state must demonstrate each road was open to public travel for 10 continuous years prior to 1976 — when the Federal Land Management and Policy Act was passed, repealing RS2477.

Americans in the Western States Are Denied Equal Rights

Washington curtails the ability of local governments to generate tax revenue for basic services.

by George R. Wentz Jr & John W. Howard
National Review

Over the years, America has seen steady progress on the principle that individuals enjoy equal rights under the law. But that principle is violated daily for the tens of millions of people who live in the twelve western states where most of the land is claimed by the federal government. What does federal control of most of the land within a state have to do with equal rights? The answer may surprise you.

First, consider what the Supreme Court refers to as the “police power.” This is the power to legislate regarding the health, safety, and welfare of residents of a state. As Chief Justice John Roberts put it in NFIB v. Sebelius, the first Obamacare case,

state sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U.S. 144, 181 (1992) . . . Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293 (J. Madison). The independent power of the States also serves as a check on the power of the Federal government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.

Bond v. United States, 131 S. Ct. 2355, 2364 (2011).

But in Utah, for example, where over 66 percent of the land is claimed by the federal government, unelected federal bureaucrats exercise police power over far more of Utah than the governor, state legislators, and county commissioners do. Citizens of Utah are routinely entangled in vast federal bureaucracies when it comes to issues that “in the ordinary course of affairs” concern their “lives, liberties, and properties.” They must deal with the Bureau of Land Management, the National Forest Service, the EPA, and a host of other federal bureaus, agencies, etc.. Routine local land-management issues quite literally become federal cases. One government — the federal government — has complete jurisdiction over all the concerns of public life in over 66 percent of the state, exposing Utah citizens to solidified “arbitrary power” in a way that no citizen of New York State, for example, ever encounters. There the federal government claims less than one quarter of 1 percent of the land, and New Yorkers can deal with elected local officials to solve the vast majority of their problems.

Just ask the citizens of San Juan County, Utah, who have had their homes raided by heavily armed Bureau of Land Management agents and have seen one of their county commissioners prosecuted and sentenced to ten days in prison and fined $96,000.00 for riding an all-terrain vehicle on a county water-line-maintenance road that had been unilaterally closed down by the feds. A county sheriff in New York who raided homes or arrested a county commissioner would quickly be voted out of office. The citizens of San Juan County have no such recourse. Instead of exercising their political franchise to protect their “lives, liberties and properties,” they must fight the full weight and unlimited resources of the federal government.

Or consider the ability to self-govern, the cornerstone of citizenship. The Supreme Court has described the ability to tax as a necessary sovereign right of each state. And property taxes are the primary tax on which local governments depend. But Nevada is deprived of the ability to tax over 83 percent of the land within its borders. Even worse, Nye County, Nev., cannot tax the 92 percent of its land that is claimed by the federal government. Just imagine trying to fund roads, schools, libraries, police departments, fire departments, and parks-and-recreation departments on taxes generated by less than 8 percent of the land within your county.

The federal government explicitly recognized this inequity in 1976 when it passed the Federal Land Policy and Management Act. To try to compensate local governments, a sort of federal welfare program, Payment in Lieu of Taxes (PILT), was established. But PILT payments are a poor substitute for property taxes.

First, PILT payments are insufficient. They pay local governments far less than what property taxes would bring in. For example, Kane County, Utah, generates much more revenue from taxing the less than 8 percent of privately owned land within its borders than it receives in PILT payments on the more than 90 percent of its land claimed by the federal government. Second, PILT payments are uncertain because eastern-state delegations routinely prevent Congress from issuing the payments, in order to pressure western delegations on pending votes. Third, governments of western states cannot spend PILT dollars the way eastern states spend tax dollars, because policy on how PILT payments can be spent is set by the federal government, not local citizens. In short, PILT payments make local governments in the west dependent on and beholden to the federal government, unlike local governments in the east, which are free to raise and spend taxes as they see fit. As a result, westerners are denied an essential right enjoyed by citizens in the east: the right to self-govern.

They are also denied certain opportunities to get ahead in life. Eastern states routinely take land for public improvements designed to generate jobs, industry, and commerce. But western states cannot condemn federally claimed land for public improvements. Imagine trying to build a road, power line, broadband system, or telecommunications system in a state where you can’t throw a stone without running into federally claimed land. It is just not possible.

Idaho recently embarked on a project to deliver additional electrical power to the state. Owing to the state’s inability to condemn federal land (over 61 percent of the state), the path of the power line had to tack jaggedly back and forth across the state. The additional length of the power line taken up in avoiding federal land reduced by two thirds the power that the project could deliver. Try creating jobs, industry, and commerce with inadequate electricity. This would have never happened in New York, where the state would simply have condemned the lands that lie in the most efficient and effective path.

Let’s consider the cumulative impact that the denial of all these rights have on westerners: the denial of equal political power. Imagine trying to convince your adult children to stay in a town they know cannot provide a thriving economy or even the basic amenities of life, such as electrical power, good roads, cell service, and broadband. Imagine attracting new people to a state without the ability to determine its own future — a state dependent on the debt-burdened federal government for welfare checks to try to survive.

Impoverished western counties dominated by federally claimed land are exporting children and importing poverty. Their population does not grow. And how is political power at the federal level shared among the states? Congressional seats and Electoral College votes are allocated on the basis of population according to the Census. Population is the constitutional currency in the competition among the states for political power. And western states are deprived of that currency because they have been deprived of all the sovereign rights discussed above.

The Framers were concerned about this prospect. On September 5, 1787, the Constitutional Convention was considering granting the federal government the ability to purchase land within a state. According to the convention record, Elbridge Gerry of Massachusetts “contended that this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Genl. Government.”

As a result, the federal government was barred from purchasing land within a state without the consent of the state legislature. That protection is included in Article I, section 8, clause 17, now known as the enclave clause. However, western states have never been given dominion over the land within their borders, and the result that Mr. Gerry feared has been achieved. Western states and their citizens are not equal. Contrary to the intent of the Framers, they are awed “into an undue obedience” to the federal government.

Those who raise this issue are often vilified as radical extremists by eastern elites. For example, in the Wall Street Journal (April 19, 2016), Interior Secretary Sally Jewell was quoted as referring to “an extreme movement to seize public lands.” That phrase mischaracterizes the careful analysis conducted by western states in their attempt to achieve equal rights for their citizens:

The right to have routine matters involving their lives, liberties, and properties determined by local officials whom they elect and can vote out of office. The right to self-determination. The equal right to raise taxes to pay for roads, schools, libraries, police departments, fire departments, and parks-and-recreation departments. The right of local government to create a strong economy. And, finally, the right to be represented in the halls of Congress equally with the citizens of the 38 states not dominated by the federal government

Equality is not an extreme idea. It is the basis on which our nation was founded. In a long, unbroken line of cases extending from 1845 to the present day, the Supreme Court has consistently held that the Constitution demands equality with respect to the sovereign rights of states. All of the rights discussed above have been recognized by the Supreme Court as sovereign state rights. Their denial in some states results in the unequal treatment of the citizens of those states.

In Shelby v. Holder, 133 S.Ct. 2612 (2013), the Supreme Court overturned the pre-clearance provisions of the Voting Rights Act, which singled out certain states for disparate treatment, and in the course of his argument for the majority, Chief Justice Roberts noted that

not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911). Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” The fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. Id., at 580.

Today, twelve western states are being treated disparately on issues relating to their sovereignty. Millions of citizens are denied equal rights, rights enjoyed by citizens of eastern states. It is a result that the Constitution does not allow. It is wrong for for eastern politicians and federal agencies in D.C. to continue to dismiss this issue. It is time for a reasoned discussion about the denial of equal rights for citizens of western states — and about how to correct the disparity.

— George R. Wentz Jr. is a lawyer with the Davillier Law Group in New Orleans. John W. Howard is a constitutional scholar and litigator in San Diego.

Congressman Accuses Obama Administration Of Illegal Action At Bundy Ranch

He cites a severe violation of U.S. Code

Congressman Steve Stockman (R-TX)

B. Christopher Agee
Western Journalism

After the federal Bureau of Land Management agents backed down from their intimidating stance at the Bundy Ranch last weekend, ample evidence has surfaced indicating the standoff between the government and the Nevada ranching family is far from over. Throughout the weeklong stalemate, members of the Bundy family were physically assaulted by armed officers, numerous cows were shot dead, and protesters faced threats of gunfire for merely expressing their outrage.

Immediately after what many considered a victory against a tyrannical federal agency, a number of leftist voices – most notably, Sen. Harry Reid – indicated the action against this family will continue.

In response, Texas Republican Rep. Steve Stockman sent a letter to Barack Obama, Department of the Interior Sec. Sally Jewell, and BLM Director Neil Kornze, laying out his position that any such action by the agency would violate the U.S. Constitution.

“Because of this standoff,” he wrote, “I have looked into BLM’s authority to conduct such paramilitary raids against American citizens, and it appears that BLM is acting in a lawless manner in Nevada.”

He cited the limited powers granted to the federal government, noting the bureau has no “right to assume preemptory police powers, that role being reserved to the States,” and explained “many federal laws require the federal government to seek assistance from local law enforcement whenever the use of force may become necessary.”

The letter included a section of the U.S. Code — 43 U.S.C. Section 1733, Subsection C — stating exactly that point. [Emphasis Stockman's]

“When the Secretary determines that assistance is necessary in enforcing Federal laws and regulations relating to the public lands or their resources he shall offer a contract to appropriate local officials having law enforcement authority within their respective jurisdictions with the view of achieving maximum feasible reliance upon local law enforcement officials in enforcing such laws and regulations.”

In the case of the Bundy Ranch, he continued, “the relevant local law enforcement officials appear to be the Sheriff of Clark County, Nevada, Douglas C. Gillespie.”

Gillespie, however, conspicuously took a back seat to BLM forces during the standoff.

“Indeed,” Stockman wrote, “the exact type of crisis that the federal government has provoked at the Bundy ranch is the very type of incident that Congress knew could be avoided by relying on local law enforcement officials.”

The stated purpose of the correspondence is for the Obama administration “to bring the BLM into compliance with 43 U.S.C. section 1733.”

Absent a full investigation into the agency’s actions, he concluded, “the federal government must not only stand down, but remove all federal personnel from anywhere near the Bundy ranch.”

Legislators and law enforcement personnel have stood alongside state militia members and the Bundy family in opposing the excessive force employed by the BLM. Stockman’s letter adds even more weight to the growing sentiment against the federal overreach.

Needles City Council reiterates objection to water project

By JENNIFER DENEVAN
Needles Desert Star

NEEDLES — In a split vote, city council members approved sending a copy of an earlier letter stating their opposition to the Cadiz Valley Water Conservation, Recovery and Storage Project to several more recipients.

There was some confusion during the Aug. 27 meeting as to who received that first letter, which was sent about a year ago. The letter, which stated the council’s disapproval of the project, was sent to Cadiz and was included in the environmental impact report being completed at the time.

Council member Tom Darcy wanted to have that same letter disbursed to additional people. His motion included sending the letter to state senators, San Bernardino County Supervisor Robert Lovingood and to government officials in Sacramento.

Lesley Thornburg, operations manager for Cadiz, Inc., gave a presentation regarding the Cadiz water project to council in the Aug. 27 meeting. She spoke on various elements of the project Cadiz has planned and the benefits it will have for the area.

Thornburg gave background regarding Cadiz. The company was founded in 1983 and owns 45,000 acres of land. They also have water rights in three San Bernardino County locations.

They’ve been farming on their land for 20 years and farm organic grapes, citrus and other types of crops, she said. The focus of the presentation was the water project.

She said the phase I portion of the project is completely approved, having completed the California Environmental Quality Act. The next steps include complete construction of a well field, natural gas power resource and solar facilities.

Cadiz plans to construct a 43-mile buried pipeline to the Colorado River aqueduct within an Arizona-California Railroad right of way. They would deliver, on average, 50,000 acre-feet of water annually to providers over a 50-year period that’s subject to a management plan, she said.

Thornburg said it will be a new reliable source for more than 100,000 families every year. Water users in six counties, including San Bernardino, Riverside, Los Angeles, Orange, Ventura and Imperial, would all receive water. The largest portion would stay in San Bernardino County, she continued.

Thornburg also discussed various projected benefits of the project. She claimed there will be many benefits to the community, including stimulation of the local economy, reduction of demands on Colorado River water, creation of just under 6,000 jobs and will mean about $6 million in tax revenue. Of that, about $600,000 will go to the school district, she continued.

Tom Henderson, project lead for the hydrology portion, also spoke. He reviewed elements of the project. He explained how all the rigorous measuring and testing corroborated the recharge that’s estimated.

He said Cadiz knew there would be questions about the recharge, they also did a variety of “what if” situations and modeled them. There was no significance impact found in any of those scenarios, he added.

Henderson also pointed out the project did get CEQA certified and CEQA is the most stringent environmental law in the U.S. No problems were found with the project, he added.

He said there are several early warning features set up to evaluate the response of the project to actual pumping and if not acting as predicted, the project would be adjusted.

It’s not optional, he said. San Bernardino County will regulate and provide oversight.

Darcy expressed several concerns about the project, including concerns about water being sent to Los Angeles and Orange Counties. Other council members echoed his comments, making statements of how those counties need to find other ways to serve their residents.

Additional concerns centered on how much water is proposed to be pumped and the potential negative impacts if there isn’t recharge. Council members generally agreed that sending another letter to show their continued disapproval of the project is needed.

Terry Campbell, council member, said he doesn’t approve of the project, but he also didn’t agree with sending another letter. “Have you really thought what you’re asking for?” he asked.

Campbell said the problem with a letter is that it may encourage federal government to step in and would possibly mean taking away private citizens’ property rights, which isn’t right. He felt it best to not take any action, he added.

There were additional comments made regarding previous situations where property rights were taken away and the possible negative impacts of the project. Sending a copy of the original letter to more representatives won out for the night.

Cadiz company spokeswoman claims water project safe, sustainable

By JENNIFER DENEVAN
Needles Desert Star

NEEDLES — While the city council decided to reiterate their stance on the Cadiz water project during their meeting Aug. 27, Cadiz also had a response.

“The Project has been reviewed and approved under the most stringent environmental law in the United States and includes unprecedented enforcement measures to ensure that operations are safe and sustainable,” Courtney Degener, Cadiz spokeswoman, said in a prepared statement.

The response comes after the council voted to resend a letter disapproving of the Cadiz water project. They approved sending the letter to government officials in Sacramento, state senators and Robert Lovingood, San Bernardino County District One Supervisor.

“We were disappointed in the action taken by the Council this week, because Needles, which is 80 miles away from the project area and in an entirely different watershed, is one of the population centers that would benefit from employment opportunities and new tax revenue offered by the project, including $1,000 per pupil for Needles’ students every year,” she said.

“Additionally, San Bernardino County and the desert will receive significant water supply benefits from the project - more than 20 percent of project supplies have already been reserved for county-based water uses - and the city of Needles could easily take delivery via an exchange along the Colorado River,” Degener said.

“We appreciate the support of the local business community and look forward to ultimately working with the Council to deliver the many real long-term local benefits promised by the project,” Degener said.

Chemehuevi Tribe Weighs In Against Cadiz Desert H2O Extraction Project

San Bernardino Sentinel

NEEDLES — The Chemehuevi Tribe has added its protest to the growing chorus of opposition to the Cadiz Water Project, which is purposed to transfer up to 50,000 acre-feet of water from the East Mojave Desert to Orange and Los Angeles counties and was given project approval by an Orange County Water District last year but is now being contested by eleven lawsuits.

The project is an undertaking of Los Angeles-based Cadiz, Inc., which since the 1980s has operated a 500-acre organic grape, citrus, melon and pepper farm in the Cadiz Valley. Cadiz, Inc. arranged to have the Santa Margarita Water District, to which it is contracted to deliver a portion of the water to be extracted from the desert, to assume lead agency status for the project’s approval. Many of those opposed to the project considered that to be a conflict of interest. San Bernardino County contemplated but in March 2012 ultimately elected against challenging Orange County-based Santa Margarita’s assumption of that lead agency status on the project.

Instead on May 1, 2012 the county entered into a memorandum of understanding with that district and Cadiz, Inc. and its corporate entities, including the Fenner Valley Mutual Water Company, allowing Santa Margarita to oversee the environmental impact report for the project and conduct the public hearings related to project approval. On October 1, 2012, the San Bernardino County Board of Supervisors gave approval to a groundwater monitoring plan to facilitate completion of the project

The project generated eleven lawsuits in which San Bernardino County, Santa Margarita and Cadiz, Inc. have been named as defendants. Even before those lawsuits materialized, the county, on March 27, 2012, retained the San Francisco-based law firm of Downey Brand to assist county counsel in responding to any lawsuits it contemplated might be triggered by the project at what was then said to be a not-to-exceed cost of $449,322. Since that time, however, legal costs have escalated and the county has now earmarked $1,449,332 to pay for outside legal counsel to represent the county with regard to legal challenges to the project.

The lawsuits allege that the project will drain the aquifer in both the Cadiz Valley and nearby Fenner Valley, wreaking environmental harm; that the approval process for the project which allowed a water district in Orange County more than 217 miles from the project area to serve as the lead agency for the project and oversee its environmental certification violated state and federal environmental laws; that the county of San Bernardino failed to abide by its own desert groundwater management plan in approving the project; that the environmental impact report for the project was inadequate; and that approval of the project violated provisions of both the National Historic Preservation Act and the Federal Land Policy and Management Act, and that the Bureau of Land Management failed to conduct a proper review of the cultural and environmental impacts of the project; that the extraction of the water will interfere with salt mining and other preexisting industrial operations in the area; and other issues.

Plaintiffs include Delaware Tetra Technologies, which operates a salt and mineral mine in the Fenner Valley, the Center for Biological Diversity, the National Audubon Society, the Sierra Club, the International Union of North America Local No. 783, the National Parks Conservation Association, the Colorado River Branch of the Archaeological Heritage Association, Santa Margarita Citizens and Ratepayers Opposing Water Nonsense, and Rodrigo Briones.

Among those inveighing against the project are U.S. Senator Dianne Feinstein and former as-sistant San Bernardino County administrative officer John Goss. Feinstein has publicly stated that the project’s proposed extraction of more than one million acre-feet of water from the Eastern Mojave Desert over the 50-year life of the project will significantly exceed the United States Geological Survey’s estimate of the area’s recharge capability. Goss, who drafted the county’s desert groundwater management ordinance before it was adopted in 2002, said that ordinance was violated when the memorandum of understanding between the county, Cadiz, Inc. and the Santa Margarita Water District had been entered into before a groundwater management plan for the Cadiz project was adopted.

Now joining Feinstein and Goss are members of the Chemehuevi Indian Tribe. Jay Cravath Ph.D., cultural director of the Chemehuevis, said the tribe has “deep concerns” regarding the project. “It will draw considerably more water than the aquifer can replace. It will pose a threat to the ranchers, rural communities and East Mojave landowners. It will do long-term harm to the springs of the precious Mojave National Preserve.”

Cravath went on to state, “What has not been part of the debate is the fact that those are among the ancestral lands of the Chemehuevi. We have traveled the trails for a thousand years. For us, the New York Mountains are akin to the Hebrews’ Mount of Olives; the forests of the Ship Mountains, our Cedars of Lebanon. The ancestors considered those springs not only the life-giving flow, but sacred blessings of mother earth. As this process moves forward, any decision must also weigh the sacred nature of these lands to our tribal members, and those who came before.”

New Rules for Meteorite Hunters

The Bureau of Land Management has new rules governing the collection of meteorites found on public lands

A close-up of the Sutter’s Mill meteorite, a fragment from a daytime fireball that exploded over parts of California and Nevada on April 22, 2012. This fragment was discovered in a horse pasture outside Lotus, Calif. (NASA Lunar Science Institute)

by Leonard David, SPACE.com
Discovery News

It’s official! A fishing license for the sky.

The Bureau of Land Management, under the U.S. Department of the Interior, has issued Instruction Memorandum No. 2012-182. It establishes policy governing the collection of meteorites found on public lands.

The policy, issued Sept. 10, provides guidance to the BLM’s field office managers for administering the collection of meteorites on public lands in three "use categories," said Derrick Henry, a public affairs specialist for BLM in Washington, D.C.

They are:

• Casual collection of small quantities without a permit
• Scientific and educational use by permit under the authority of the Antiquities Act
• Commercial collection of meteorites through the issuance of land-use permits

"The policy recognizes that there is interest in collecting meteorites by hobbyists … but it also is recognition that there are science and commercial interests as well," Henry told SPACE.com.

Henry said the new policy builds upon the guiding authority of the 1976 Federal Lands Policy and Management Act. It is the first time the BLM has formally addressed rules regarding collection of meteorites on public lands, he added.

As noted in the new policy, the extraterrestrial origin of meteorites, as well as their relative rarity, "has made them highly desirable to casual collectors, commercial collectors and scientific researchers."

The document goes on to note that "recent media attention has increased … confusion about the legality of and limits to casual and commercial collection. Courts have long established that meteorites belong to the owner of the surface estate. Therefore, meteorites found on public lands are part of the BLM’s surface estate, belong to the federal government, and must be managed as natural resources in accordance with the FLPMA of 1976."

Henry said the only other option under the Federal Lands Policy and Management Act would be to prohibit meteorite collection on federal land except for scientific inquiry. "This policy ensures that the three listed types of collection on BLM-managed land are allowed, and each of those has guidance under FLPMA," he said.

Fair market value

"We tried to account for every kind of occurrence out there," said Lucia Kuizon, national paleontologist at the BLM in Washington, D.C. "We felt the policy helps the public understand the issues, as well as for our own resource specialists out in the field when they get inquiries."

The policy for commercial collecting is new, Kuizon told SPACE.com.

"Prior to the instruction memorandum, we did not allow commercial collection of meteorites," she said. "The details of how to go about obtaining a permit and what it will cost can only be determined by submitting a proposal to the field office where the activity will take place, and then fees and other costs are calculated.

"Most collectors are probably 'small businesses,' and because the activity is more surface collection after a fall, the application fees should be reasonable," Kuizon added. "The fair market value would be calculated by the appraisers in the state office."

Mixed feelings

In the world of meteorite collecting, the new rules have sparked a flurry of comment on the Internet and on a special mailing list dedicated to the topic.

"I have mixed feelings about the new BLM guidelines," said Michael Gilmer of Galactic Stone and Ironworks, in Lutz, Fla. "I think this is all about money. Meteorites flew under the regulatory radar for a long time."

"I think it is good that BLM is trying to preserve the land, but they are schizophrenic in how they preserve the lands," Gilmer told SPACE.com. "They want to discourage meteorite hunters, but at the same time they allow large commercial mining interests to lease the land for exploration and exploitation. I think the mining companies do more damage than any meteorite hunter."

Gilmer said that if the BLM decides to rigorously enforce these guidelines, "then it will negatively impact the recovery rate of all meteorites … old finds and new falls alike."

The general consensus around the meteorite world of dealers and hunters, Gilmer added, is that the new rules are worrisome. However, "it varies from office to office, and a lot depends on the director of that particular BLM area. Some of them are more lenient than others. So I expect enforcement of the regulations to be spotty and inconsistent," he said.

What is needed is increased cooperation between private hunters and officially sanctioned hunters, Gilmer emphasized. "Ideally, the BLM should encourage meteorite hunting … but this is what happens when bureaucrats pass down new regulations without having any knowledge of how the meteorite market operates."

Freshly fallen meteorites

According to Arizona-based meteorite hunter Jim Wooddell, the BLM’s new rules clarify much of what the meteorite hunting community already knew.

"However, I want to point out that local policy for any specific area could be different based on the local land-use plan, which I think is the ultimate policy for a given area," he told SPACE.com.

Wooddell said two things are imperative: "First, the local authorized officers need to be educated in the collection of meteorites and, of critical importance, the need to recover fresh fallen meteorites as soon as possible."

Second, based on conversations with BLM representatives, Wooddell said institutions – such as those that study and curate meteorites – can and should proactively file permit applications that cover an entire state. Doing so would allow them, or their volunteers, to collect meteorites immediately after a fall. Still, this is up to the authorized officer for the state, he said.

"The bottom line is that no one has any rights to collect meteorites on federal lands for profit or for science without permission from the BLM in the form of a permit," Wooddell said. "Science and profit seekers are those affected the most. It was made apparent the BLM knows who many of them are. Time will tell how this works out."

Check out the BLM memorandum on meteorites here.