Governmental Regulation of Paleontology in the 21st Century

Cathleen L. May and Chaim Benjamini

Introduction: Why Regulate?

A regulation is a principle, rule, or law designed to control or govern conduct (1). For purposes of this forum, we employ a broad definition of the term "regulation" to mean the implementation of an authority to constrain the conduct of entities (individuals, institutions, organizations, companies, etc.) Clearly, we are focused on the regulation of conduct with respect to fossils. Why regulate paleontology? The paleontologist and the regulating official will probably always answer this question differently.

In considering paleontological regulation, one must understand something of the context in which any governmental regulation is promulgated. Regulation is necessary when a range of conduct yields a variety of consequences, of which only some are desirable. The regulating entity determines which consequences are desirable or acceptable. Then it may either proscribe the conduct that leads to undesirable outcomes, or direct the conduct that results in desired consequences. Frequently, governmental regulations combine proscription and direction to achieve desired or mandated results. Though the generic purpose of regulation is more or less singular, governmental regulations are created for a variety of reasons, usually designed to protect some interest. Many regulations protect special interests or sets of special interests; i.e. whose conduct yields benefits endorsed by the regulating body. Often, regulations deemed to be in the best interest of the common good indirectly and over time protect a special interest in the short term. The concept of "protection" through regulation extends to intangible values such as an individual's civil rights, potential yields of natural resources, and changed future values for both material property and rights of access and conduct. For example, in the United States the rights of an individual to profit from legal activities and the rights of future generations to benefit from natural resources are both "protected" (theoretically, at least) through the regulated use of publicly-owned lands.

There are inherent conflicts between protecting the interests of individuals (whether they are people or institutions or businesses) and protecting the current and future interests of society. Parallel conflicts exist between protections based on current value systems and the recognition that future generations may value their world differently. These two universal dichotomies lie at the heart of all decisions about regulating the use of natural resources anywhere. Any such regulation can be described by its position somewhere along two continua stretching between these two sets of endpoints: current and future values, and individual and collective rights. For example, at one end of both continua, future generations' rights to scientific knowledge recoverable by technologies yet to be invented may outweigh an individual's right to profits in the current marketplace. The converse may prevail in another system, where regulation would protect interests at the other end of both continua. The pressures that mold such decisions may have little to do with the actual resources or values involved, and are usually the result of historical factors and the current political milieu. For example, the current political climate in the United States is inimical to heavy federal regulation, especially of access to publicly owned lands. This climate is the result of a convergence of many long-term socioeconomic, cultural, and political trends-as is any political climate. It has very little to do with fossils or paleontologists. Nonetheless, the impact of this political climate on fossils and paleontology is quite strong, affecting the influences of divided factions on policies and potential regulations. To return to the original question, then: why regulate paleontology? Governments at many levels do and will continue to regulate paleontology because it is a collection of human behaviors that affects the conduct and property of other human beings. That is, paleontology will be regulated wherever and whenever sufficient conflicts of interest arise, and not necessarily because of anything inherently paleontological. If we as a global forum represent paleontology at its most inclusive, then our examination of governmental regulation of paleontology ought to proceed at a correspondingly high level of analysis.

A global strategy for effectively informing the process of paleontological regulation in the 21st century appears to be exigent. Such a strategy requires that we understand and recognize: the variety of governing systems responsible for such regulation; the variety of [potentially contradictory] paleontological special interests; and the variety of other legitimate [potentially conflicting] special interests affecting paleontological regulation. We must be sensitive to cultural variances and to socioeconomic inequities globally. We must remain cognizant of the relative ignorance of regulative bodies. It is incumbent upon us to become more politically sophisticated, since it is unlikely that governments will become better informed paleontologically.

Finally, in addition to avoiding scientific and cultural myopia, we must also attempt a reasonable goal. For example, we are more likely to produce a global definition of "scientific significance" for fossils and localities than we are to change the import/export regulations of any one country to adequately address fossils. We may speak to the former; a daunting maze of considerations outside our purview dilutes our effectiveness on the latter. If it is our goal to effectively inform paleontological regulation, in our own interests and in the interests of conserving the value of the fossil record as a whole, then we should determine what we might uniquely contribute. The following is a hopeful guide toward that end.

Status of Governmental Regulation of Paleontology

No compendium of paleontological laws and regulations worldwide exists. Such would not necessarily be useful to this forum, since we hope to discuss regulation thematically, not specifically. Problems associated with compiling, maintaining and verifying the information of such a compendium should be addressed in conference discussions. We urge conference participants to familiarize themselves with any paleontological regulations of the countries in which they work, so that a comparative analysis of the sample range represented by the forum can become part of published proceedings. For the current purpose, we simply acknowledge that paleontological regulations worldwide range from the non-existent to the explicit and from the overlooked to the strictly enforced. There are some commonalties, however, and in examining those, we might find areas of fruitful discussion and hopeful contribution as a forum. The commonalties are quickly apparent when we first ask what is regulated, and on what legal basis?

Access-Based Regulation. - Fossils in situ and their context are commonly affected by regulated access because they are treated (or ignored) as natural resources. Natural resources are normally subject to laws governing land ownership, such as trespass, surface and subsurface titles, transfers of estate, etc. When a government entity owns or manages the land for a collective interest, then the statutory mandates of the manager will affect fossils and paleontological activity. Whether land ownership is private or public, access to fossils in situ is regulated coincidentally, if not explicitly. When paleontological regulations are specific and related to access, they are likely to refer only to occurrences on lands owned or managed by the regulator. In some systems, however, the state claims all paleontological resources whether they are discovered on public or private lands. In still other cases, fossils are considered part of the "mineral estate" of the land, and might not be titled to the same owner as the "real estate." In such cases, access to the land may coincidentally affect access to fossils owned by another entity or by the state (2). These latter cases fall in the gap between regulation based on land ownership, and regulation based on ownership of movable, material property.

Title-Based Regulation. - Herein, we call the regulations that arise from laws governing the ownership of things "title-based" regulations, since the owner of an object is considered to have "title" to that object. This is simply a convention to distinguish such regulations from those that arise from laws governing the ownership of places and access. Once a fossil is removed from its spatiotemporal context, it becomes an object and is usually no longer considered a natural resource, for purposes of regulation. In many systems fossils removed from situ are treated as archeological artifacts or antiquities and become subject to laws regulating the conservation of heritage, historical, cultural and other such values (3). Sometimes scientific values are included in such laws and regulations, and may be extended to fossils. An extensive system of laws and international treaties protects archeological objects and antiquities (4).

In summary, any regulations based on titled property, including those governing commerce and finance, transportation, and import and export may affect fossils coincidentally or explicitly. Comparatively little regulation is explicit for fossils; usually fossils are considered as belonging to a more inclusive category of titled property. Any regulations based on access to and ownership of land, including those governing the conservation and exploitation of natural resources may affect fossils coincidentally or explicitly. Again, there is comparatively little regulation specific to paleontology; more inclusive regulations are usually extended to include paleontological activities (5).

Future Needs for Paleontological Regulation

The perceived need for changes in paleontological regulations varies in terms of both character and degree (6). Indeed the debates over how thoroughly paleontology and fossils should be regulated, who and what ought to be regulated, by whom and according to what authority, and according to which standards and guidelines are arguably the most divisive in our global fellowship. The ability of any special interest to influence regulators is severely constrained by internal division. Clearly, the converse is true: unity of purpose and clarity of voice enhance the effectiveness of a special interest group to influence regulation on its behalf. Therefore, a most pressing need for the global fellowship of paleontologists must to be identify and clearly articulate areas of international consensus regarding regulation. Such consensus should include endorsed strategies by which it might be utilized to influence regulatory processes. A measurement of the validity of such consensus should be agreed upon, and a strategy for achieving it devised. Finally, an effort to articulate some of the most fundamental science-based guidelines and standards for regulating paleontology is in order. For example, a clear set of criteria by which the scientific significance of a specimen or locality might be judged is certainly within both our purview and our reach. Similarly, we might agree upon criteria for minimum adequate curation of collections available to science.

Again, it is important to recognize that many other factors affect the need for regulation. For example, the demography of the American West is changing directionally and rapidly. Increasing millions of people live near and use public lands for a broad range of activities. Recreational use by visitors from around the world is increasing exponentially. Even if these usage patterns had no direct impact on paleontology-which of course they do-public land managers are forced to increase regulations of all kinds to resolve conflicts of interests. Likewise, economic trends affecting international commerce in fossils are likely to generate increased regulation. The question for paleontology is not whether, or even how much to regulate, because we are not likely to be asked. If we exercise leadership and can voice consensus, however, we may be asked to help regulators make those decisions. Our goal must be to determine how we can achieve agreed upon goals in this fashion.

Major Obstacles to Achieving Useful Consensus

Consensus is likely to be polarized between the very general and the very specific. For example, this forum might agree in principle that the value of the fossil record ought to be conserved (7) for the perpetual benefit of humankind. The participants in this conference will almost surely be divided into factions over such things as: conservation vs. preservation, public vs. private ownership of salvaged or harvested specimens, levels of acceptable "commercialization" of paleontology, levels of acceptable "professionalism" for paleontologists, etc. At the other end of the spectrum, most paleontologists would agree that absolute and relative rareness are among the best criteria for determining the scientific significance of a specimen or locality. It is the middle ground, where differences divide us along lines drawn between subdisciplines, subphyla, and means of economic or professional enrichment that we disagree. Remaining mired in and divided by irreconcilable differences is the major obstacle to achieving any consensus that we can use for the benefit of the global fellowship of paleontology.

Best And Worst Case Scenarios For Paleontological Regulation

A "worst case" scenario for paleontology would be the increasing promulgation of regulations that do not consider paleontology or fossils, but that affect the fossil record and our professions directly or indirectly. Increased regulation in every sector of society is immanent in the face of global trends: changing demographics, increased pressures on global natural resources with population growth, the increasingly global communications system, and increased globalization of commerce and economics. Our worst mistake would be to ignore our civic responsibilities to be informed and potentially influential world citizens, scientists, and curators in common of the fossil record.

A "best case" scenario is one in which we act in unity to ensure a persistent influence on any regulations that might affect the fossil record and our professions. Certainly, we may be able to articulate only a few areas of international consensus. However, the force of even a few concerns expressed clearly, continuously, globally, and without internal dissent should not be dismissed or underestimated.

Conclusion

Fossils and paleontological activities are subject to inclusive laws in any jurisdiction that regulates access to places, title to objects, and trade of either. Regulations promulgated explicitly for paleontological special interests will be subject to these more inclusive regulations and are unlikely to supercede or to contradict them. The fossil record and paleontology do not exist outside their contexts-natural and social. As a forum, we can demonstrate international leadership by recognizing these realities explicitly in our efforts to educate and advise our governments.

(1) The American Heritage Dictionary of the English Language, Third Edition. Houghton Mifflin Company. Copyright © 1992.

(2) Sakurai, D. 1994. Animals, Mineral or Cultural Antiquity?: the Management and Protection of Paleontological Resources. Loy. L.A. Int'l. & Comp. L.J. 17/1, 197-243.

(3) For example, see Wild, R. 1988. The protection of fossils and paleontological sites in the Federal Republic of Germany, 181-189. In Crowther, P.R. and Wimbledon, W.A. (eds.). The use and conservation of palaeontological sites. Spec. Pap. Palaeont. 40, 1-200.

(4) Sakurai, D.

(5) For example, those found in the "organic acts" of U.S. land management bureaus such as the Federal Land Management and Policy Act of 1976 and the National Forest Management Act.

(6) Raup, D. et al. 1987. Paleontological collecting. National Academy Press, Washington, D.C.

(7) We use the term conservation to mean that the value of an object or resource is maintained, whether or not it is actually preserved. For example, an adequate archive of the information contained in a trackway conserves its value to paleontology even if the physical trackway is destroyed by natural or human causes.

Regulation Delegates

Dr. Cathleen L. May--Topic coordinator
Outsource Options, Inc.
P. O. Box 833,
Gunnison, CO 81230
Catmay@rmi.net
970-641-2199

Prof. Chaim Benjamini--Topic Coordinator
Ben Gurion University
Geology Department
P. O. Box 653
Beersheba, 84105 ISRAEL
chaim@bgumail.bgu.ac.il
927-57-231463 (fax)
927-57-461369

Anusuya Chinsamy
South African Museum of Earth Sciences
P.O. Box 61
Cape Town 8000, SOUTH AFRICA
achinsam@samuseum.ac.za
27-21-24-6716 (FAX)
27-21-24-3330 (PHONE)

Prof. Mu Xi-nan
Nanjing Institute of Geology and Palaeontology
Academia Sininc, 39 East Beijing Road
Nanjing, 210008
PEOPLE'S REPUBLIC OF CHINA
muxinan@public1.ptt.js.cn
86-25-3357026 (PHONE)
342301 NJIGP CN (TELEX)
86-25-3357026 (PHONE)

This page is maintained for the Paleo21 Organizing Committee by Norman MacLeod and H. Richard Lane. Corrections, inquiries about, and updates to any of the information shown above should be directed to Norm and/or Rich.