Diverse Coalition Appeals to Congress Regarding Unjust Provisions of Omnibus Land Management Act

Readers with an interest in property rights, civil rights or simply staying out of jail for doing something one has no idea is illegal will want to review the coalition letter sent to the Congressional leadership, the Attorney General and to President Barack Obama by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the Competitive Enterprise Institute, the Association of Applied Paleontological Sciences and the National Center for Public Policy Research during the last 24 hours.

The letter was organized by John Berlau of the Competitive Enterprise Institute.

Dear Speaker Pelosi and Minority Leader Boehner,

Our respective organizations have diverse viewpoints, but we share a deep and abiding belief in due process under the law. We believe that that Congress should perform careful diligence before adding violations to the criminal codes, that federal crimes should be narrowly defined and show clear criminal intent, and that the use of asset forfeiture must be narrowly tailored so that it does not unduly punish the accused before a trial has proven their guilt. As such we have grave concerns about sections of the pending Omnibus Land Management Act of 2009, which passed the Senate last week as H.R. 146, regarding “paleontological resources preservation.”

These sections, now contained in the bill under Subtitle Dof Title VI, seek to empower the Departments of Agriculture and the Interior to”protect paleontological resources on Federal land using scientific principles and expertise.” We understand that preventing theft of and harm to important fossils on federal land is a serious objective. However, we are concerned that the bill creates many new federal crimes using language that is so broad that the provisions could cover innocent human error. There is also, in defining the crimes, a troubling lack of words such as “knowingly” that clearly establish criminal intent as a prerequisite for prosecution. As Georgetown University legal ethicist John Hasnas has written, to serve the greater goal of justice, all criminal laws must require the government to establish that “one had to knowingly or at least recklessly act in a morally blameworthy way to be subject of criminal punishment.”

H.R. 146 would make it illegal to 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 special permission from the government. Penalties for violations include up to five years imprisonment. “Paleontological resources” are loosely defined as all “fossilized remains … that are of paleontological interest and that provide information about the history of life on earth.” We are troubled by this definition that paleontological organizations say could cover many common rocks that adults and children collect. The Association of Applied Paleontological Sciences has warned that with this wording, it is easy to visualize “a group of students unknowingly crossing over an invisible line.”

We are also concerned about the bill’s prohibition against “false labeling” of fossil specimens, an offense that also carries criminal penalties. The bill makes it a crime to “make or submit any false record, account or label for, or any false identification of, any paleontological resource excavated or removed from federal land.” This broad language could criminalize innocent misidentifications, limit scientific inquiry, and infringe on the First Amendment’s protection of freedom of speech. Fossil labeling is a complex process, and even the top museums of the world have been known to revise labeling in their exhibits upon scholarly review or new facts being discovered ..Thus, the fear of making an honest mistake in fossil labeling or even having fossil identifications proven “false” in light of new scientific discoveries could have a chilling effect on new research in paleontology.

We are pleased that the Senate recently improved provisions regarding forfeiture. Language in earlier versions of the legislation would have allowed government officials to engage in the pretrial seizure of “all vehicles and equipment of any person” accused of theft or harm to a “paleontological resource.” Forfeiting a person’s property without a conviction undermines the bedrock principle of our legal system: that a person is innocent until proven guilty. Past abuses of forfeiture led to bipartisan passage of the Civil Asset Forfeiture Reform Act of 2000, and we had feared that these provisions would go against the spirit of these reforms. The Senate heeded our concerns with an amendment, and as passed on March 20, “vehicles and equipment” were removed from the forfeiture language, so that the forfeiture provisions apply only to the “paleontological resources” taken from federal land. This is a marked improvement, and we would oppose any attempts to reinsert forfeiture of personal property in a revised bill.

Above all, we are concerned that a bill containing new federal crimes, fines and imprisonment, and forfeiture provisions may come to the House floor without first being marked up in the House Judiciary Committee. That committee is tasked with providing centralized oversight of criminal legislation, thereby enhancing the fairness and consistency of those enactments. As such we strongly urge that the criminal provisions of the Omnibus Public Land Management Act be stripped from any final legislation until they are subject to Judiciary Committee review and amendment.”

Representatives of the signatory organizations of this letter would be happy to meet with you or members of your staff to address these concerns.


Caroline Fredrickson
American Civil Liberties Union
Washington Legislative Office

Tracie Bennitt
Association of Applied Paleontological Sciences

John Berlau
Director, Center for Investors and Entrepreneurs
Competitive Enterprise Institute

Kyle O’Dowd
Assoc. Executive Director for Policy
National Association of Criminal Defense Lawyers

David A. Ridenour
Vice President
The National Center for Public Policy Research

Cc: House Majority Leader Steny Hoyer
House Majority Whip James Clyburn
House Minority Whip Eric Cantor
House Judiciary Committee Chairman John Conyers
House Judiciary Committee Ranking Member Lamar Smith
President Barack Obama
Attorney General Eric Holder

For more information on this issue, see this blog’s previous coverage of this here and here.

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