Prospecting Fossils, Opinion vs. Law Options

[MikeS]

When I first started to look into the legality of collecting fossils years ago, I came across many opinions about the subject. Recently I have dug into the issue a little deeper to separate the opinion from actual law. While on the BLM website under rules and regulations page I saw this about prospecting on BLM lands:

Archaeological Resource Protection Act (ARPA)
Anything over 100 years old is considered a cultural artifact and therefore its removal or destruction without authorization is prohibited. No surface collection or disturbance of any cultural materials is allowed on public lands. This includes surface collection of arrowheads (under 43 CFR 8365.15(a)(1)). All surface collection, disturbance, excavation and/or digging for artifacts are prohibited.
Paleontological Resources
The law distinguishes between vertebrate (dinosaurs or animals) and invertebrate(seashells, etc.) fossils. Reasonable amounts of invertebrate fossils may be collected from the surface for personal use (not for sale). Vertebrate fossil collection (dinosaur bones) is prohibited. All excavation or digging for either type of fossil is illegal.
Mineral Resources (Rock, Sand, Gravel)
Reasonable amounts of minerals resources may be collected with a permit for personal use, if collection can be accomplished without causing resource damage.

So I decided to read the (ARPA) and related Acts. I could find no distinction between vertebrate and invertebrate fossils written in the law. Here is what it actually says: (I underlined one sentence and put the word "not" in bold.)

Archaeological Resources Protection Act of 1979
16 U.S.C. 470bb, Definitions
Section 3
As used in this Act—
(1) the term "archaeological resource" means any material remains of past human life or activities which are of archaeological interest, as determined under uniform regulations promulgated pursuant to this Act. Such regulations containing such determination shall include, but not be limited to: pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items. Nonfossilized and fossilized paleontological specimens, or any portion or piece thereof, shall not be considered archaeological resources, under the regulations under this paragraph, unless found in an archaeological context. No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age.
16 U.S.C. 470kk,
Savings provisions
16 U.S.C. 470kk(a),
Mining, mineral leasing, reclamation, and other multiple uses
Section 12
(a) Nothing in this Act shall be construed to repeal, modify,or impose additional restrictions on the activities permitted under existing laws and authorities relating to mining, mineral leasing, reclamation, and other multiple uses of the public lands.
16 U.S.C. 470kk(b),
Private collections
(b) Nothing in this Act applies to, or requires a permit for, the collection for private purposes of any rock, coin, bullet, or mineral which is not an archaeological resource, as determined under uniform regulations promulgated under section 3(1) of this Act.
16 U.S.C. 470kk©,
Lands within Act
© Nothing in this Act shall be construed to affect any land other than public land or Indian land or to affect the lawful recovery, collection, or sale of archaeological resources from land other than public land or Indian land.

The law excludes paleontological specimens from the definition of "archaeological resource" "unless found in an archaeological context".
If they are found in a mineralogical context then they are minerals and subject to mining rights and laws.

[swizz]

The Antiquities Act also has their own rules regarding "artifacts" and contradicts "regulations" issued by other agencies.
Clear as mud. They can come and pry my invertebrate and flora fossils from my cold dead hands.

[Clay Diggins]

The Antiquities Act also has their own rules regarding "artifacts" and contradicts "regulations" issued by other agencies.
Clear as mud. They can come and pry my invertebrate and flora fossils from my cold dead hands.

That portion of the 1906 Antiquities Act is not enforceable. Although the actual law always trumps regulations the first attempt to prosecute for violation of that section resulted in the law on antiquities being declared unconstitutionally vague. Congress never defined what an antiquity was.

See United-States-v-Diaz

The reason why you see vertebrate fossils for sale openly is the Federal fossil collecting laws only apply to Federal lands. Those laws are unenforceable on private or State lands.

Heavy Pans

p.s There is an exception in the 2004 Act for collecting arrowheads found on the surface - they are open game. Please note that mining claims are also exempt from enforcement.