By Kathleen Li Reitz
Suppose that you recently acquired the surface estate of a property, and then unearthed numerous fossils there—including the nearly complete skeletal remains of a T-Rex. Better still, you also found the fossilized remains of two dinosaurs locked in combat when death struck. But someone else retains the mineral rights underneath the property.1 Do you own the fossils, which are worth millions? In 2020, the Murray family received their long-awaited answer to this question from the Supreme Court of Montana.2 To their delight, the Court reasoned that yes, they as surface owners get to claim the fossils—because fossils are not minerals.
Perhaps your own backyard is not a treasure trove like the Murrays’ (it helps to live in Montana, a state intermittently covered by sea for eons, resulting in many layers of sedimentary buildup). But if you live in Minnesota and are a hobbyist rockhound or fossil hunter, a researcher of geology or paleontology, or a science teacher wishing to take your class on a collection field trip, where can you go and how can you collect these specimens legally? What about petrified woods—are they considered fossils or minerals? Read on.
Home to a relatively well-exposed portion of the oldest nucleus of the North American continent, Minnesota contains rocks that record some 3.5 billion years of the earth’s 4.54 billion years of geohistory.3 Whether you are a professionally trained geoscientist or an amateur collector of these inorganic specimens, Minnesota has much to offer as long as you know where to look.
For purposes of this article, scientific collectors of geological (rocks4) or paleontological (fossils) resources collect primarily for scientific purposes and for the education of the general public. Educational collectors are usually led by the educational programs of schools, museums, camps, and other organizations. Amateur or casual collectors obtain the specimens for their personal enjoyment without selling, reselling, or bartering. They are all non-commercial collectors.
A fossil is considered “land” rather than personal property before its excavation.5 Rocks, like the soil (and other naturally occurring materials that make up the earth on a land parcel), belong to the real property owner. Because the rights to collect rocks and fossils on private lands depend on each individual owner’s directives, the best practice is to always identify the rightful property owner and ask for permission before collecting.6 This article lays out the bedrock rules for scientific, educational, and recreational collectors of rock and fossil specimens on Minnesota’s 12 million acres of public lands, which constitute about 24 percent of the state’s land area.7 For collectors who venture across state borders, the general statutes and rules are similarly applicable to federal lands elsewhere, and the sources of authority on state lands can hopefully be of referential value to those who seek other states’ legal counterparts.
In Minnesota, the federal government owns about 3.5 million acres of the land area,8 while the state government owns about 8.4 million acres.9 What you can or cannot do on these lands depend on which governmental agencies control and manage them.
Collection on Minnesota’s federal land
The vast majority of Minnesota’s federal land is managed by the Forest Services (FS).10 Other sizeable federal lands are national wildlife management areas (about 516,000 acres), managed by the Fish and Wildlife Service (FWS); and national parklands (about 140,000 acres), managed by the National Park Service (NPS). The Department of Defense (DOD) and the Bureau of Land Management (BLM) manage a relatively meager 2,000 and 1,101 acres of federal lands in Minnesota, respectively.
Until about a decade ago, legislation for the protection of fossils on federal public lands scattered across various sources of authority with—at times—ambiguous and oscillating legal positions.11 In 2009, Congress enacted the Paleontological Resources Preservation Act (PRPA) as part of the Omnibus Public Land Management Act of 2009. The PRPA allows “casual collection” of a “reasonable” amount of certain fossils to the extent they are collected with the use of non-powered hand tools resulting in only negligible damage to the Earth’s surface and other resources.12 As a collector, you will be glad to know that the broad definition of these collectible fossils includes fossilized remains, traces, or organism imprints of common invertebrates and plants.13 But you should stay away from any fossil items that bear a connection with human life or civilization: Materials associated with an archaeological resource14 or any cultural items15 are excluded from the casual collection rule.16 For instance, if an ammonite fossil also happens to have been used by an ancient civilization as a hand tool or a funerary object, it would be off-limits to fossil hunters under the PRPA.
National forests and grasslands
A casual collector of common invertebrate or plant fossils does not need to obtain a permit on lands controlled by the Forest Service (FS),17 which constitutes most of Minnesota’s federal land (nearly 3 million acres), or the 2,000 acres controlled by the Bureau of Land Management (BLM). The recreational fossil hunter’s collection is limited to less than 25 pounds per person, per day; and not more than 100 pounds per year.18 A researcher or science teacher should apply for a permit if he or she intends to collect fossils on these public lands for the purpose of furthering paleontological knowledge or for public education.19
Rockhounding on national forests and grasslands requires a free-use permit.20 Note that petrified wood is treated as a mineral rather than a fossil by the regulation, and also requires a free-use permit to collect.21 While such free-use permits can be issued to an individual, nonprofit organization, or corporation, these permit holders may not remove more than 5,000 cubic yards (or its weight equivalent) during any 12 consecutive months.22 Free-use permit rock collectors can only collect for their non-commercial use. That is: no sale, resale, or bartering.23
Federal wildlife refuge areas
Minnesota is home to approximately 516,000 thousand acres of federal wildlife management areas managed by the Fish and Wildlife Service. The FWS issues permits for paleontological (as well as archeological) research pursuant to the PRPA and the Archeological Resource Protection Action of 1979.24 The FWS also allows personal recreational collection of most rocks from the surface only, by hand (this includes handheld gold pans) but prohibits searching for and removing valuable semi-precious rocks, stones, or mineral specimens.25 Recreational collection of fossils—as well as silver, platinum, and gemstones—is prohibited within land managed by the FWS.26 This means, for example, that rockhounds cannot collect Minnesota’s state gemstone (agate) anywhere in the Minnesota Valley National Wildlife Refuge.
National parks and scenic trails
Minnesota is home to 140,000 acres of national parklands managed by the National Park Service (NPS), including five national parks and the Minnesota segment of the North Country National Scenic Trail.27 Recreational and educational collections of geological specimens (fossils and rocks) are both prohibited within these bounds.28 The NPS, however, encourages scientific research into these geological resources by reputable scientific and educational institutions as well as state or federal agencies, provided that such research-based collection would neither damage other natural or cultural resources nor adversely affect environmental or scenic values, and the subject specimen is not readily available elsewhere.29 If you are a geologist or paleontologist, you may apply for a specimen collection permit through the National Park Service Research Permit and Reporting System (RPRS).30
Collection on Minnesota’s state lands and regional/city parks
The Minnesota Department of Natural Resources (DNR) manages 5.6 million acres of state lands, the majority of which are forested lands (4.2 million acres). Other lands mainly include 1.3 million acres of wildlife management areas, 66 state parks, 166 scientific and natural areas, and 700 aquatic management areas. In general, the DNR may issue permits to allow “scientists, educators, natural resource professionals and the public” to conduct scientific research on Minnesota lands and natural resources.31
State parks and forest recreational areas
Minnesota’s state parks are created to preserve and perpetuate for future generations the features and resources that existed prior to settlement and other significant changes present today.32 Consistent with this mission, Minnesota’s state parks and forest recreational areas generally prohibit recreational collection of rocks and fossils.33 Collectors for scientific and educational purposes should seek the written permission of the state’s DNR commissioner.34 Rockhounding and fossil hunting for non-commercial use are allowed in one particular state park—Hill Annex Mine State Park in Itasca County—but watch out for posted signs that specify certain areas are off-limits.35
Other major types of state lands
State forests’ day-use areas permit “recreational use of the forest in its natural state,” which includes “interpretation [of nature] and nature observation.”36 Non-commercial collection of its inorganic resources is not specifically provided for in the statute, but the DNR does review proposals for scientific and educational collection and issues permits on a case-by-case basis.37 Minnesota’s wildlife management areas, such as the Lieuna State Wildlife Management Area north of Duluth, are established to protect lands and waters that have a high potential for wildlife production.38 Recreational collection is generally not permitted in these areas, but research-based collection is. The state’s aquatic management areas are established to protect, develop, and manage Minnesota’s various waterbodies and adjacent wetlands and lands.39 Many such areas exist in the form of state easements on private lands, and any types of collection would be subject to the permission of the private landowner.
Regional and city parks
The collection of geological and paleontological specimens in regional and city parks is subject to the rules of the counties or municipalities that manage these parks. For instance, Dakota County’s ordinance contains a blanket prohibition of the intentional removal, alteration, or destruction of soil, mineral, or other natural resources within its parks, including the expansive Lebanon Hills Regional Park in the south metro.40 Some other local authorities may have more elastic rules. For example, right on our doorstep, the City of St. Paul offers a wealth of geological wonders—the Decorah Shale geologic formation contains abundant fossils.41 The best place to observe the Decorah Shale is at St. Paul’s Lilydale Regional Park, where one can also view at close range the nearby St. Peter Sandstone and Platteville Limestone formations.42 Lilydale Regional Park at one point issued fossil hunting permits for casual collectors but that program has been on hold for some time.43 The City of St. Paul principally prohibits the intentional digging and removal of any natural resource (including stones) from its park system without prior permission.44 Despite the general ban, collectors of geological and paleontological specimens for scientific and educational purposes can still seek permits by submitting case-specific written requests to the director of St. Paul’s park system.45
Designating a state fossil, mineral, rock, or stone
Until 2021, Minnesota was one of just seven U.S. states without an official state fossil.46 In 1988, the Giant Beaver almost made the cut through proposed legislation, but that initiative ultimately failed.47 In 2021, the Science Museum of Minnesota successfully led the effort to name a state fossil for Minnesota, and this time the Giant Beaver emerged triumphant. It is being submitted by the museum to the Minnesota Legislature to obtain official state fossil status.48 Minnesota’s state gemstone is the beautiful Lake Superior agate, designated in 1969,49 but the state has yet to designate a state mineral, rock, or stone.50 If you are interested in filling in these blanks for our state, please contact elected representatives and ask them to introduce a bill proposing designations.
KATHLEEN LI REITZ is an assistant attorney general with the Minnesota Attorney General’s Office. She is also an avid geo-traveler and fossil hunter.
This article represents the view of the author only and does not reflect the view of the Minnesota Attorney General’s Office.
Notes
1 Like Montana, where the events described here actually occurred, Minnesota also recognizes severance of mineral rights from surface ownership. See Minnesota Department of Natural Resources, Division of Lands and Minerals, Mineral Rights Ownership in Minnesota at 1-2. But Minnesota’s courts have not been presented with a similar fossil v. mineral question yet.
2 Murray v. BEJ Minerals, LLC, 464 P.3d 80 (Mont. 2020). This case began in Montana state court, and was then removed to the District of Montana on the basis of diversity jurisdiction. The federal trial court granted summary judgment, holding that dinosaur fossils were not “minerals” under mineral deed. The mineral rights holder appealed to the 9th Circuit, which certified the particular question “whether dinosaur fossils constituted ‘minerals’ for purpose of mineral reservation” to be answered by the Supreme Court of Montana.
3 Richard W. Ojakangas, Roadside Geology of Minnesota, at 5 (2009).
4 For word economy, this article refers to rocks and minerals collectively as rocks. Geologically speaking, rocks and minerals are different—a mineral is a naturally occurring homogeneous solid composed of a single inorganic element or compound. A rock is an aggregate of one or more minerals. See U.S. Department of the Interior, FAQs https://www.usgs.gov/faqs/what-difference-between-a-rock-and-a-mineral?qt-news_science_products=0#qt-news_science_products ; see also https://www.nps.gov/subjects/geology/minerals.htm (last accessed 8/2/2021).
5 Black Hills Inst. of Geological Research v. S. Dakota Sch. of Mines & Tech., 12 F.3d 737, 742 (8th Cir. 1993).
6 Timothy J. Witt, J.D., Legal Aspects of Rock, Mineral, and Fossil Collecting, https://geology.com/minerals/legal-aspects-of-rock-collecting/ (last accessed 8/2/2021).
7 Minnesota Department of Natural Resources, Public Lands Summary (v. 1.4, 6/27/2019).
8 Congressional Research Service, Federal Land Ownership: Overview and Data, at 10 (updated 2/21/2020).
9 See supra n. 7.
10 See supra n. 8.
11 See Robert W. Malmsheimer, Alisa S.H. Hilfinger, In Search of a Paleontological Resources Policy for Federal Lands, 43 Nat. Resources J. 587, 592-98 (2003).
12 16 U.S.C. §470aaa (1) (2021).
13 16 U.S.C. §470aaa (4).
14 16 U.S.C. §470bb (1).
15 25 U.S.C.A. §3001(3).
16 16 U.S.C. §470aaa (4)(A)-(B).
17 36 C.F.R. §291.3(e).
18 Paleontology, Traces of Past Life, Forest Service (FS-1058, Oct. 2015).
19 16 U.S.C. §470aaa-3 (b)(2).
20 36 C.F.R. §228.62(d). See also Rockhounding Guide, Forest Service (FS-1091, June 2017).
21 36 C.F.R. §228.62(e).
22 36 C.F.R. §228.62(d)(2).
23 36 C.F.R. §228.62(d).
24 U.S. Fish and Wildlife Service, Historic Preservation, (https://www.fws.gov/historicPreservation/crp/index.html> (last accessed 8/14/2021).
25 50 C.F.R. §27.63.
26 50 C.F.R. §36.31(b).
27 See National Park Service, Minnesota, <https://www.nps.gov/state/mn/index.htm> (last accessed 8-15-2021).
28 36 C.F.R. §2.5(a).
29 See 36 C.F.R. §2.5(b).
30 U.S. Department of the Interior, RPRS Portal <https://irma.nps.gov/RPRS/> (last accessed 8-2-2021).
31 DNR Permits, https://www.dnr.state.mn.us/permits/index.html (last accessed 8/15/2021).
32 Minn. Stat. §86A.05, subd. 2.
33 Minn. R. 6100.0900, Subp. 1.
34 Id. See also Research in Minnesota State Parks, <https://www.dnr.state.mn.us/parks_trails/research.html> (last accessed 8/15/2021).
35 Minn. R. 6100.0900, Subp. 2.(C).
36 Minn. Stat. §86A.05, subd. 7(b)(1).
37 DNR, Scientific Research <https://www.dnr.state.mn.us/permits/scientific-research.html> (last accessed 8-15-2021).
38 Minn. Stat. §86A.05, subd. 8.
39 Minn. Stat. §86A.05, subd. 14.
40 Dakota County Ordinance No. 107, Park Ordinance, Ch. V. Sec. B.1.
41 See supra n. 8, at 279.
42 J. Mossler and S. Benson, University of Minnesota, Minnesota Geological Survey: Minnesota at a Glance, Fossil Collecting in the Twin Cities Area (1995; revised Mar. 1999; updated Aug. 2006), available at www.geo.umn.edu/mgs .
43 Currently, Lilydale is not issuing fossil hunting permits. See St. Paul Minnesota Lilydale Regional Park, https://www.stpaul.gov/facilities/lilydale-regional-park (last accessed 8/15/2021).
44 See City of St. Paul Parks and Recreation Rules and Regulations, Ch. 1., Sec. 3 & Ch. 4., Sec. 13 (c), (d).
45 Telephonic inquiry with the City of St. Paul Permit Office on 8/16/2021.
46 Science Museum of Minnesota State Fossil Campaign, https://new.smm.org/dino-days/mn-state-fossil (last accessed 8/2/2021).
47 Minnesota State Symbols—Unofficial, Proposed, or Facetious, Compiled by the Minnesota Legislative Reference Library, https://www.leg.mn.gov/leg/unsym (last accessed 8/2/2021).
48 Alexandria Simon, Giant Beaver Edges out Competition to Become Minnesota’s State Fossil, https://www.kare11.com/article/news/local/giant-beaver-minnesota-state-fossil-science-museum/89-84a4ada3-db88-4292-8290-bd460874bcf8 > (last accessed 10/16/2021).
49 Minn. Stat. §1.147 (2021).
50 Wang, Yinan, The 50 State Gems & Minerals, at 34 (2020).