IMPLEMENTING THE PUBLIC TRUST IN PALEONTOLOGICAL RESOURCES

JOSEPH L. SAX

James H. House & Hiram H. Hurd Professor

Boalt Hall (Law School), University of California, Berkeley, CA 94720

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Abstract—The historic public trust relating to navigable waters is not directly applicable to the federal public lands. But the broader public trust principle that knowledge is in the public domain provides an important rationale for protecting scientifically significant fossil resources. Since paleontological knowledge is embedded in material objects (fossils) and in information provided by their site, the trust principle denies any right to disturb, destroy, or possess fossils so as to impair their scientific significance. Laws that require permits for excavation; that impose restrictions on permits so as to protect and preserve knowledge and opportunities for scientific work; and that assure safeguarding of significant materials in appropriate repositories; are all appropriate to implement the public trust. In principle the trust applies to scientifically valuable fossil resources wherever they are found. The United States has thus far been slow to adopt some of the legislation necessary to implement public trust obligations in the field of paleontology, though a range of practical and known legislative techniques are available.

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LEGAL STATUS OF THE PUBLIC TRUST CONCEPT AS APPLIED TO THE FEDERAL LANDS

The public trust as a legal concept exists in several different forms. In its most familiar setting it is a common law (judicially developed) concept drawn from Roman Law that recognizes a public right in navigable waters and the lands under them, and sometimes in the seashore. This doctrine has been widely adopted in the United States and is implemented independently by each State of the Union, and not as a matter of federal law. This judicially fashioned and implemented historical trust has never been understood to apply to the federal lands (1970; 1980).

Though it has not been authoritatively settled by the U.S. Supreme Court, the general understanding is that the United States_insofar as the federal lands are concerned_has only those obligations that it imposes upon itself by statute, or by regulation or policy pursuant to statutory authorization. Thus, Congress may (and sometimes does) determine that certain of its resources are held in public trust. It then constitutes the United States as a trustee of those resources and determines the scope and content of its trust obligation. It has recognized itself as a trustee in some statutes, sometimes explicitly, sometimes implicitly (that is, without using the term trust or public trust in so many words). The important point is that courts look to federal statutes and regulations, and not to common law principles, to determine the presence or absence of a trust obligation governing the federal lands, and to the scope of any such obligation.

There is no general statute governing protection of paleontological resources on the federal lands (1987;1994) as there is for archeological resources under the Archeological Resources Protection Act, known as ARPA (1979). ARPA expressly excludes paleontological remains from its coverage, except those associated with archeological sites. There are, however, some statutes that explicitly provide fossils protection in various specific settings (1975;1980a; 1988; 1994a). In addition, Congress has provided for fossil protection in various areas, such as the Florissant Fossil Beds National Monument in Colorado (1969), Fossil Butte National Monument in Wyoming (1972) and Agate Fossil Beds National Monument in Nebraska (1969a) by bringing those areas under the jurisdiction of the National Park Service and thereby (1970a) under the protection afforded by the National Park Service Organic Act, and the Regulations and Management Policies of the Park Service (1916; 2001; 2001a). Federal laws of broad application, such as the Federal Land Policy and Management Act (1976), which governs the public lands managed by the Bureau of Land Management, can provide implicit protection for fossils through provisions that call for the public lands to be managed in a manner that protects the quality of scientific, historical, archeological and other values . Statutes such as these authorize the promulgation of administrative directions providing detailed protection and management of fossil resources on public lands. Among the regulatory protections provided are provisions that collections shall be deposited in public museums and must be accessible to the public (2001b).

One may appropriately characterize the above-mentioned statutes and implementing regulations as recognition by the Congress and federal agencies of a federal "public trust" responsibility (1995). Indeed, the Secretary of the Interior in a report on fossil protection, explicitly spoke of "keeping these scientifically important specimens in the public trust." (2000).

One of the central elements of "public trust" as a legal concept is that government is not merely empowered to act to protect certain interests, but bears an obligation to protect interests that are fundamentally important to the nation. The most familiar setting in which governments acknowledge a trust responsibility is where national history is concerned.. It would be difficult to imagine a nation worthy of the name that did not consider itself obliged to protect the records of its founding (such as the Declaration of Independence), or to memorialize its great catalyzing events (such as the Revolutionary and Civil Wars). It is also conventional for nations to preserve and protect the symbols as well as the substance of its epochal achievements in art, literature, and science. In adopting official acts to memorialize these events and to recognize and perpetuate these achievements, government acts as a trustee. Nevertheless, for the most part, nothing compels government to take on the role of trustee. Its responsibility is ultimately to history (1986, 1991), and at times governments fail disastrously, as all the world witnessed in the wave of cultural vandalism that swept through Afghanistan in the first months of 2001 (2001c).

THE PUBLIC TRUST CONCEPT AS A GUIDELINE FOR PROTECTION OF PALEONTOLOGICAL RESOURCES ON THE PUBLIC LANDS

How does one identify those responsibilities that should engage the government's role as a public trustee? How should the trust concept apply to fossils on the federal public domain (and elsewhere)? Broadly stated, public trust describes those things that by their nature are understood to belong in the public domain as the common heritage of all, and as primary elements of a community's common history, experience and aspirations. Probably the single best known element of this heritage is knowledge: what we take from the past, share, build on, and pass forward through the generations. Knowledge, along with our genetic heritage, are our most fundamental common possessions.

The commitment of civilized communities to safeguarding their common heritage by investing relevant resources with a special public character is the essence of the public trust. It finds recognition in various settings in our legal system, as to knowledge, most notably in the theory underlying the limitations on proprietary rights in our laws governing matters such as patent and copyright. No one can patent (that is, privatize, even for a limited time) the theory of relativity, or the concept of immunization against disease. Nor can one obtain a copyright on the theme of Greek tragedy, in the Romeo and Juliet story; or in the idea of the impressionist painting. These basic elements of knowledge or inspiration are understood as belonging to the public, and must remain in the public domain. The same reasoning counsels that no one should be permitted to privatize the knowledge that collectively constitutes the field of paleontology. When government implements that principle by regulation governing excavation, use, and ownership of fossils of scientific importance so as to assure that knowledge is not lost to the public and to posterity, it acts appropriately as a public trustee, in accord with accepted public trust concepts.

Fossils present a distinctive (though not unique) setting for the application of the trust principle. Fossils are material objects that contain scientific knowledge within them or in their context. Unlike mathematical knowledge, or knowledge of a theory of physics, paleontological knowledge is embedded in a physical object and in a physical context. The information which the physical object contains is entitled to the same protection under the trust concept as is other knowledge—that is, it should be protected as a public good for public use and benefit. However, most knowledge, like the discoveries of mathematics, is not entwined with physical objects that superficially look like any ordinary object that can be held as private property. Therefore, some special rules are needed for the protection of objects like fossils that bear knowledge or ideas within material objects. While a significant vertebrate fossil and a lump of coal may seem to be similar objects that the laws of property would treat similarly, they are not. For example, there is no particular reason why coal or oil lying under the public lands should not become ordinary private property, to be disposed of at the will of a private owner, so long as the public is appropriately compensated.. But that is not at all the case with a scientifically important fossil found on the public lands (or, as we shall see, on private land either)..

Recognition of this unusual situation (knowledge physically contained within a material object) explains why the legal standing of scientifically valuable fossils needs to be differentiated from the legal status of other things found on or under the ground, such as coal or oil or diamonds, even though they may also be fossilized remains. (In this respect, scientifically valuable fossils are more analogous to archaeological remains found on the land than they are to other sorts of fossilized materials). This distinction between the mere material-object value of something from its scientific/educational value explains why federal statutes should declare objects such as scientifically valuable fossils to be in the public trust, and to protect them for their scientific and public value.

To implement the public trust principle as to paleontological knowledge, the law (law as used in the following pages refers to federal statutes) needs to separate out the merely material object-value of a fossil (and its setting) from its scientific value. The former (the material object-value) can properly be treated in whatever conventional ways objects on the particular public lands are treated; but the latter (scientific value) deserves to be safeguarded as an inalienable element of the public domain. This might at first seem a formidable task, but in practice it is not so difficult.

To take but one example, while significant fossil specimens no doubt belong in museums where they are available for scientific and public access, as far as public trust responsibilities are concerned, there should be no objection in principle to allowing casts to be made and marketed to collectors, so long as the work can be done without risk of damage to the specimen. Apparently there is considerable variation in policy among major museums today, some of which prohibit the making of casts, while others allow them solely for research purposes but not for sale, and still others permit marketing of casts, retaining a royalty payment to the institution that owns the original specimen. As to this latter point, nothing in public trust principle dictates how (or whether) economic benefits derived from such practices are allocated, so long as financial arrangements do not interfere with public access or with research.

Another example, though not involving public property, is familiar in American law: the historic preservation ordinance (1978). A private building designated as a landmark because of its historic or architectural values, may be used for ordinary private purposes_as a home, an office building, or a railway station_so long as the owner does not modify or demolish those elements of the building that have historic and/or architectural heritage value, such as the facade. While such ordinances are usually adopted on a local (municipal) level, and thus may vary from one place to another, they are generally quite consistent in permitting economically productive private uses so long as those uses are consistent with the historic or architectural values the ordinance aims to protect.

Yet a third technique, well developed in English law, employs a positive incentive approach to protecting public trust values in material objects. In that country individuals who inherit objects designated as having national heritage value (which objects may range from manuscripts, to furniture, paintings and stately homes) are immunized from payment of inheritance tax on the objects if they agree to make the objects accessible to the public on reasonable terms. Some owners open their houses on certain dates to public visits; some deposit paintings or sculptures in local museums at certain times; others, by special pre-arrangement, allow visitors to come to their homes (1999). It would be quite easy for the United States to adopt a variant of this approach addressed to private owners of important fossils (or other artefacts). For example, a procedure might instituted through which fossils of "national scientific significance" could be identified by a council of experts. Private collectors who owned such objects, and were willing to make them accessible to researchers and to the public on specified terms, could seek to have them certified as being of such significance. Upon certification, and upon making arrangements for access (for example, by loan to a major museum at certain intervals or for a certain time), the owner would qualify for a tax benefit. The benefit might consist of a charitable deduction, a partial exemption from estate tax (if it remains in effect), or some other such financial benefit. While the United States Treasury has generally been opposed to tax-benefit proposals that are not revenue-need-based, the fact remains that such devices are the most attractive non-coercive means to encourage private owners of publicly-valued objects to acknowledge the public interest in their collections.

In each of these otherwise diverse instances, the law has shown itself capable of sorting out those elements of an object's possession or use which relate only to its material-object value_whether recreational, economic, or familial— from those elements, such as transcendent scientific, artistic, or scholarly values, that define it as having public trust significance.

The techniques by which various nations acknowledge and protect public trust properties are numerous, and well established throughout the world. Export limitations are commonplace, where heritage items, such as antiquities or great works of art, have special significance to a national community (1989). Commonly certain objects cannot be sold out of the country until the government has had an opportunity to purchase it for a museum at home (though raising sufficient funds is often a formidable task). While the owner is ordinarily compensated, he/she is obliged at least to tolerate some delay, and thereby perhaps some diminution of international market opportunities, in order to assure protection of the public trust element in the property.

What is required in each such case is a legal regime that prohibits collection, possession, removal, or ownership in ways that diminish or destroy cultural or scientific value, or that interfere with scientific study of the object. If it is determined that the object has no discernible potential for scientific study or use (as may be the case with most non-vertebrate fossils, or other common fossils) or that such potential has been exhausted (a site has been fully studied and documented), then the object may appropriately be relegated to rules that generally govern ordinary property.

THE SHAPE OF A PUBLIC TRUST LEGAL REGIME FOR THE PUBLIC LANDS

What would a public trust regime for public domain paleontological resources look like? Basically, it would be similar to the recommendations set out in the May, 2000, Report of the Secretary of the Interior on Fossils on Federal and Indian Lands, and to the basic administrative rules that are now in place on the part of federal land management agencies, as summarized in that report (p. 20). It would, however, be appropriate to have a single federal paleontological protection statute, similar in scope and structure to the Archaeological Resources Protection Act (1979), setting out general public trust management principles for all federal agencies and federal lands. In brief, such a statute would:

• Declare that paleontological resources on the public lands have value for scientific study and research and education, both in themselves and in their context, and are held in public trust in order to protect and preserve those values.

• Provide for inventorying and monitoring of scientifically valuable sites.

• Provide for adequate enforcement to protect sites from unauthorized collection, and to penalize—at levels that are sufficient for deterrence—unauthorized collecting and disturbance of sites..

• Provide a permit system to restrict collecting so as to assure the safeguarding of scientific and educational values.

• Retain all scientifically valuable specimens in public ownership and house them in repositories so as to assure access in perpetuity for scientific study and public education.

• Subordinate private possession and use to public trust interests on a permanent basis, while permitting collection and possession of common fossils by amateurs on those federal lands where the governing mandates are consistent with such activity.

BEYOND THE PUBLIC LANDS

The foregoing discussion of public trust principles should make clear that the public interest in scientifically valuable paleontological resources does not vary, depending on where they are found. However, in the United States paleontological remains on private lands are generally treated as ordinary private property. (1993). The United States is unusual in this regard. Many_probably most—countries treat culturally or scientifically valuable relics, whether human-made or natural, as either an endowment belonging to the nation or, at least, as a limited sort of private property subject to regulatory regimes that protect the public trust interest it the object (1984). This is true not only of countries with quite different conceptions of private property, such as Turkey (1997), but also to nations with property systems very much like our own. For example, some Canadian Provinces designate all paleontological resources found within its territory as the property of the Province (1994b). While other countries usually provide some measure of compensation, as a reward or incentive, to finders or landowners, the United States is almost alone among nations in taking an essentially hands-off position as to such materials on private lands, unless they are human remains (1999).

Landownership of the site where fossils are discovered, however, should not be the sine qua non for public control of the fate of scientifically significant fossils. A wide range of legal strategies is potentially available for bringing private or tribal lands within the ambit of public trust protection. One might do as little as require public notification of proposed excavation activities, with a public right of first refusal to acquire authority to explore a site, to study and/or to collect significant fossils from it. Alternatively, laws can be enacted to establish a regulatory scheme governing registration and qualification of private entities engaged in fossil collection, limiting permission to properly trained and qualified persons, and regulating methods of excavation.

There is no reason to believe that modest regulatory restrictions of the sort suggested in the preceding paragraph would give rise to constitutional objections, either as to the scope of congressional authority or as to violation of private property rights. Federal authority to regulate interstate, international, and tribal commerce would undoubtedly be ample to regulate activities that result in trade and commerce in fossils by collectors and institutions. Nothing in the several recent U.S. Supreme Court cases (2000a; 1995a) confining the congressional commerce power to protection of things in interstate commerce, or having a substantial relation to interstate commerce, would put into question legislation governing the unquestioned national and international commerce in fossils growing out of excavations on private lands. Nor would such regulation transgress the constitutional prohibition on taking of private property for public use without the payment of just compensation. The reason is that regulation of the sort suggested above would neither constitute a total deprivation of value under the Supreme Court ruling in the Lucas case (1992) nor would the character of the government action or its economic impact violate the standards set down in the Court's Penn Central decision (1978).

In addition to, or instead of, the regulatory regime proposed here, Congress could employ any of a variety of positive incentives, such as tax credits for permitting scientific access and study, or for various forms of cooperation with public museums or universities. Even the most minimal such provisions would acknowledge recognition of the presence of a public trust interest in fossils notwithstanding their location and their ownership.

The passive position taken by the United States in regard to locations other than the federal lands apparently explains the view taken by the Department of the Interior that as to fossils found on Indian lands "it is up to the Indian landowner...to determine who has access to their lands and under what conditions..." and that the sole role of the Bureau of Indian Affairs is to review contracts or leases of Indian lands for the extraction of fossils to assure that they "are of economic benefit to the Indian landowner." (2000)(the Secretary's approval role has recently been further narrowed by Congress, see 25 U.S.C. § 81). Though the government is understandably and appropriately deferential to tribal legislative authority on reservation land (1996), its view of the government's "trust" obligation to Native Americans in purely economic terms, taking no account of the broader public trust interest in the fossils, whether on Indian land or elsewhere, is at best distressingly narrow, and reflects no inclination to find ways to accommodate the two distinctive trust-type obligations the United States bears, to tribal autonomy and to our common evolutionary heritage.

As a practical matter, failure to take cognizance of significant fossils wherever they may be found probably subverts any effort at effective enforcement even of fossil resources on the public lands. For example, usually one of the most effective ways to address unauthorized collecting/looting on public lands, is to implement a permit and registration system that can be followed to auction markets and other collector sale sites. Unless some sort of permitting or at least some registration system applies to non-federal lands as well as to the federal lands, leading to a certification-of-origin requirement, there is often no effective way of determining whether objects that move into the collector market have been illegally removed from the federal lands (1994). The Supreme Court has sustained laws based on this sort of need for administrative coherence in upholding a law governing trade in eagle feathers (1979a).

In any event, the notion that government is powerless to protect trust values found on private (or Indian) lands is dubious, both in law and in fairness. The well-established precedents for regulation of private owners of designated historic landmarks could certainly be adapted to lands containing valuable fossils. A recent modest proposal by an English expert for protection of buried antiquities could easily be adapted to this country and to fossils: The owner would have good title, but that title could only be secured by reporting the find, and securing the site for a specified period, with authority in a designated public authority to determine whether or how exploration could go forward, and in the event to provide compensation against loss, or to confirm the private title and right. Failure to report and to await a scientific judgment on further development would subject the owner to fines and penalties.

Implementation of even the most modest of such proposals would constitute a major step forward in implementation of the public trust in paleontological resources.

 

REFERENCES

1916. National Park Service Organic Act. 39 Statutes at Large 535. 16 U.S.C. §§ 1-4.

1965. Agate Fossil Beds National Monument. Public Law 89-33, 16 U.S.C. § 431.

1969. Florissant Fossils National Monument. Public Law 91-60, 16 U.S.C. § 431.

1970. Sax JL. The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention. Michigan Law Review 68:471.

1970a. General Authorities Act. Public Law 91-383, 16 U.S.C. § 1a-1.

1972. Fossil Butte National Monument. Public Law 92-537, 16 U.S.C. § 431.

1975. Hells Canyon National Recreation Area Act. Public Law 94-199, 16 U.S.C. § 460gg

1976. Federal Land Policy and Management Act. Public Law 94-579, 43 U.S.C. § 1701(a)(8).

1978. Penn Central Trans. Co. v. New York City. 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631

1979. Archeological Resources Protection Act. Public Law 96-95, 16 U.S.C. § 470aa et seq.

1979a. Andrus v. Allard. 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210.

1980. Selvin M.. The Public Trust Doctrine in American Law and Economic Policy, 1789-1920. Wisconsin Law Review 6:1403.

1980a. Alaska National Interest Lands Conservation Act. Public Law 96-487, 16 U.S.C. § 3191.

1984. O'Keefe PJ and Prott LV. Law and the Cultural Heritage. Volume I Abington, Professional Books, ch. 6.

1986. Knudson R. Contemporary Cultural Resource Management. In DJ Meltzer et al, editors. American Archaeology Past and Future. Washington: Smithsonian Institution Press. p. 395-413.

1987. National Research Council. Paleontological Collecting. Washington. National Academy Press.

1988. Federal Cave Resources Protection Act. Public Law 100-691, 16 U.S.C. § 4301 et seq.

1989. O'Keefe PJ and Prott LV. Law and the Cultural Heritage. Volume III Abington, Professional Books, ch. 9.

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1992. Lucas v. South Carolina Coastal Council. 506 U.S. 103, 112 S.Ct. 2886. 120 L.Ed.2d 798.

1993. Black Hills Institute of Geological Research. 12 F.3d 737, 742 (U.S. Ct. of App. 8th Cir.).

1994. Lazerwitz DJ. Bones of Contention: The Regulation of Paleontological Resources on the Federal Public Lands. Indiana Law Journal. 69:601.

1994a. California Desert Protection Act. Public Law 103-433. 16 U.S.C.§ 410aaa

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1995. Knudson, R. The Public Trust and Archaeological Stewardship. In R Knudson and BC Keel, editors. The Public Trust and the First Americans. Corvallis: Oregon State University Press. p 9-28.

1995a. United States v. Lopez. 514 U.S. 549, 115 S.Ct. 549, 131 L.Ed.2d 626.

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1999. Sax JL. Playing Darts With A Rembrandt. Ann Arbor: University of Michigan Press. p. 66, 179.

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2000a. United States v. Morrison. 529 U.S. 598; 120 S.Ct. 1740, 1749, 146 L.Ed.2d 658.

2001. Code of Federal Regulations. 36:2.1, 2.5

2001a. National Park Service Management Policies. Chapter 4.

2001b. Code of Federal Regulations. 43:3.17; 43:8365.

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