What is it about?

This paper written with Professor Thomas Miceli, Department of Economics, University of Connecticut, discusses how federal legislation has navigated from very strong protection of the scientific values of fossils found on federal land under the Antiquities Act of 1906, through a period of wavering between strong protection under the failed Vertebrate Paleontological Resources Protection Act of 1992, and allowing greater scope for amateur and commercial collectors under the Fossil Preservation Act of 1996. The Paleontological Resources Preservation Act passed Congress in 2009 and has settled the matter for now, largely in favor of the protection of scientific values, while allowing some scope for amateur collectors to act in partnership with professional scientists. However, as Montana’s vetoed State Park Excavation Bill of 2013 exemplifies, this legal equilibrium is not exactly cast in stone, as there is still a sentiment to allow greater scope for commercial collecting, at least on state lands. And it is also true that some non-Federal legislation is aimed at collecting fossil public scientific values from private lands, though this is not yet widespread. Our analysis shows that laws protecting scientific value are warranted based on the public good nature of fossil values , that is they can have both non-pecuniary scientific values and pecuniary market values, but this factor potentially creates an offsetting disincentive for profit-motivated collectors to engage in search, which is an essential pre-requisite to recovery. Thus, if the scientific community needs to rely- at least to some extent on private collectors to locate important fossils, there must be some recognition of the incentives that those searchers face. Federal legislation in fact pays little regard to this factor. In this respect, we believe there are lessons to be learned from the common law and state legislation pertaining to recovery of historic shipwrecks, which present many of the same economic issues. To be sure, legislatures have not given up on finding better regimes for the governance of the optimal recovery of fossils. As the California legislation and Montana’s vetoed State Park Excavation Bill (2013) exemplify, there is still sentiment to allow greater scope for the recovery of scientific values on private lands. It remains to be seen how quickly and how widely this type of legislation will move on to other US states.

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Why is it important?

This paper is important because US Federal and state laws, even after over 100-years of trying, have still not found the right balance between promoting the optimal recovery of both scientific and commercial values. Too much protection of paleontological values discourages search for new fossils, while too much protection of commercial values - as on US private lands, can cause the wasting of scientific values when commercial collectors have no real interest in 'the science'. We point out that two states, California and Montana have tried to find a better balance between these often conflicting values. Some towns in California have moved to increase protection of scientific values on private lands, while a (failed) Montana House bill was aimed at promoting commercial collecting, and so increasing search, on some state lands. In this paper we encourage all states to think in terms of finding a better legal balance between the interests of scientists and commercial collectors.


My interest in the law and economics of paleontological finds was piqued by a personal tour guided by the famous paleontologist Jack Horner, of stored specimens in the basement of Museum of the Rockies in Bozeman, Montana, I'll never forget him pulling out a draw with a dinosaur jaw in it, measuring one of my fingers against one of its teeth and seeing that it was about 5 times the size of my finger. Tom Miceli and I have also done papers on the law and economics of the recovery of values from historic shipwrecks. These too are endangered by conflicts between maritime archaeologists and collectors - "who only want the gold". The difference between US law governing historical shipwrecks and paleontological finds is that under common law Admiralty Courts reward diving companies for the scientific work they perform - the better is the latter the larger is the reward. Unfortunately, no such common law applies to paleontological finds and legislators continue to struggle to find the proper balance between the science and commercial values.

Paul Hallwood
University of Connecticut

Read the Original

This page is a summary of: UNEARTHING T. REX: THE LAW AND ECONOMICS OF PALEONTOLOGICAL FINDS, Contemporary Economic Policy, April 2020, Wiley, DOI: 10.1111/coep.12473.
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