Many are unaware of South Carolina’s footprint in the paleontology community. Even more are scratching their heads wondering what it has to do with the legal field, but there are various statutes and regulations that govern the act of excavating archaeological and paleontological finds. For those novice paleontologists or any future member of the community, check state statutes and regulations before going to collect any fossils or artifacts. Before we discuss the implications the state’s fossil record has had on the legality of collecting finds, we will start at the beginning, 541 million years ago.
Prehistoric South Carolina
The state’s fossil record began in the Paleozoic Era, nearly 541 million years ago. During the Paleozoic Era, the southwestern portion of the state was submerged under seawater. As a result, fossilized trilobites have been found from the Cambrian period.
The state would progressively be more engulfed by seawater 400 million years later in the Cretaceous Period of the Mesozoic era with nearly the entire state submerged. Many Late Cretaceous invertebrates are present in the fossil record. The PeeDee beds are known for housing mollusks and belemnites, an extinct group of cephalopods. The flora of the Late Cretaceous Carolinas included oaks, eucalyptuses, willows, sequoia, laurel, and magnolias. Many dinosaur carcasses were washed to sea during these times, so many fragments of bones and teeth have been found from these animals. The Donoho Creek Formation in the northeastern part of the state houses several Late Cretaceous dinosaur fossils.
Although Donoho is not as famous as the Hell Creek Formation in Montana, a site that has multiple iconic species such as Tyrannosaurus, Allosaurus, Triceratops, Apatosaurus, etc., South Carolina is well known for its collection of Columbian Mammoth fossils. Columbian Mammoths are a hybrid species of the legendary Wooly Mammoth and another lineage descended from steppe mammoths. The Columbian Mammoths died at the end of the Pleistocene era, about 11,500 years ago. The Columbian Mammoth is also codified at S.C. Code Ann. § 1-1-691 (2021) as the official state fossil of South Carolina.
Millennium later, in 1725, Mark Catesby, an English botanist, visited Stono, where enslaved people had uncovered several large fossil teeth while digging in a swamp. They unanimously identified the teeth as elephant molars. It was not until 1942 when George Gaylord Simpson, an American paleontologist, concluded that the enslaved people at Stono were the first to scientifically identify a North American vertebrate fossil.
South Carolina Hobby License
South Carolina is one of the only few states that require a “Hobby License” for collecting archaeological and paleontological finds in submerged sites. S.C. Code Ann. § 54-7-670 (2021). State jurisdiction begins at the mean low water mark and includes coastal waters and all inland navigable and formerly navigable waters such as rivers, creeks, and canals. Id. The State also has jurisdiction of offshore waters out to three statute miles. In-state applicants can pay $5.00 for a 6-month license or $18.00 for a 2-year license. The South Carolina Institute of Archelogy and Anthropology (SCIAA) has the right to revoke any license or deny renewal to any licensees if they violate § 54-7-670, the statute governing the issuing of Hobby Licenses.
The commercial sale of any find recovered under the Hobby License program is prohibited by S.C. Code Ann. § 54-7-670 (2021). Instead, separate licenses can be acquired for commercial purposes. All finds must be removed by hand, and no more than ten artifacts may be recovered from a shipwreck site per day. SCIAA defines artifacts as “any object 50 years or older that was made, altered, or used by man. Bottles, ceramics, coins, tobacco pipes, artillery, and stone projectile points are all artifacts.”
Federal Laws Regarding Paleontology
Alongside the multiple state laws, there are certain congressional acts that have been passed to protect the paleontological community. South Carolina has multiple National landmarks, such as Congaree National Park and the Francis Marion National Forest. The following congressional acts govern these parks.
In 1906, President Theodore Roosevelt signed the Antiquities Act, This act helps protect any historic or prehistoric ruin or monument, or any evacuated object from archaeological sites, situated on lands owned or controlled by the United States’ Government. The act authorizes the President to declare national monuments by public proclamation of landmarks, structures, and any other objects of prehistoric, historic, or scientific interest on federal lands. The act proclaimed several national monuments based upon significant paleontological resources (including famous fossil sites such as National Dinosaur Park and Waco Mammoth National Park). The act was the first to acknowledge and protect the paleontological community.
In 1979, the Archaeological Resources Protection Act of 1979 (ARPA) was passed. The Antiquities Act proved ineffective protecting historical sites from criminal looting. Several improvements from the Antiquities Act were present in ARPA: the implementation of more law enforcement at archaeological sites, more defined descriptions of prohibited activities (including illegal trafficking, and interstate and international law in violation of state statutes), and an increase in punishment for those who violated the act. For a felony offense, first time offenders can be fined up to $20,000 and imprisoned for up to one year. Second time felony offenders can be fined up to $100,000 and imprisoned for up to five years.
In 2009, Congress passed the Paleontological Resources Preservation Act (PRPA). PRPA directs the Department of Agriculture and the Department of the Interior to manage and protect paleontological resources on Federal land using scientific principles and expertise. The agencies were directed to establish a program to increase public awareness about the significance of paleontological resources. In response to this, the National Park Service established National Fossil Day to address and to promote the scientific and educational values of fossils. Under the Act, paleontological resource crimes carry civil and criminal penalties. An example is imprisonment for no more than five years, and multiple offenses can double the sentence. PRPA also allows permits to be granted for the collection of paleontological resources.
Other State Laws Regarding Paleontology
For those interested in recreational paleontology, there are numerous clubs and museums that rely on archaeological and paleontological finds. Two local examples are the North Carolina Fossil Club and the Myrtle Beach Fossil Club. Before you join your state or city’s club and begin excavating finds, be sure to understand any local or state statutes governing the act.
Alongside other States having statutes designating state fossils, some have official state dinosaurs. Others have extra precautions to protect the value of excavated fossils. For example, Alabama’s state fossil statute designates Basilosaurus, a prehistoric whale, as the state fossil but also states “no fossil ‘Species Basilosaurus Cetoides’ shall be removed from the State of Alabama, in whole or in part, except by prior written approval of the Governor.” Ala. Code § 1-2-20 (1975). Other states prohibit collection of vertebrate fossils without an institutional permit, such as Utah and Florida. Florida Statue §1004.57 reads,
“All vertebrate fossils found on lands owned or leased by the state belong to the state with title to the fossils vested in the Florida Museum of Natural History for the purposes of administration. Field collection of vertebrate fossils may be conducted under the authority of a permit issued by the Program of Vertebrate Paleontology in accordance with FS §1004.575 and the University of Florida Rule 6C1-7.541 F.A.C.”
Case law on paleontology is not extensive, but it has recently been touched in property law, which is something to keep in mind for those practicing in fossil-rich states such as Utah, Montana, or Colorado. In Murray v. BEJ Minerals, LLC, the Montana Supreme Court ruled that dinosaur fossils were not “minerals” for purpose of a mineral reservation in a mineral deed. Murray v. BEJ Mins., LLC, 2020 MT 131, 400 Mont. 135, 464 P.3d 80.
If you would like to read more on this subject, the Sol Blatt Jr. Law Library has two books that might interest you, Buried Treasure: Finders, Keepers, and the Law, by Cecil C. Kuhne and The National Historic Preservation Act, by editors Kimball M. Banks and Ann M. Scott. You can also check out a research libguide, Jurassic Law, for more information, links, and images.
So, who knows?
Maybe Paleontology Law will be a legitimate practice in the legal career or a subsection in 1L’s property books years from now. Perhaps Paleontology Law clubs and societies will begin arising across the country. Here, at Charleston School of Law, The Paleontology Law Coalition has been established for any student interested in this small niche of the law. Many people did not assume that paleontology, statutory law, and regulatory law were intertwined. However, those willing to practice property law, especially in states like Montana or Colorado, must not ignore the extensive law behind the study of prehistoric life and the excavation of fossils and artifacts. Those who do ignore it, might risk their practice facing extinction.
Florida Fossil Permit
Fossil Hunting in South Carolina
Laws on Fossil Hunting & Collecting Around the World: a Brief Overview
National Park Service: Fossils and Paleontology: Laws, Regulations, & Policies
South Carolina Institute for Archeology and Anthropology: Maritime Research and Hobby Licenses
Addison “Oz” Osborne
2L Senator, Student Bar Association
Research Fellow, Sol Blatt Jr. Law Library
President, Paleontology Law Coalition
Social Chair, Second Amendment Association
Charleston School of Law Class of 2023