Federal Cave Resources Protection Act Reprinted (with
corrections) from the NSS News, December 1988, pp 460-461.
As of 12/31/97 you can now link directly to the U.S. Code Site at http://www.house.gov/.
BE IT ENACTED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES OF
THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED,
SEC. 1. SHORT TITLE. This Act may
be referred to as the "Federal Cave Resources Protection Act of 1988"
SEC. 2. FINDINGS, PURPOSES, AND
POLICY.
(a) FINDINGS.--The Congress finds and declares that-- (1)
significant caves on Federal lands are an invaluable and irreplaceable part of
the Nation's natural heritage; and (2) in some instances, these significant
caves are threatened due to improper use, increased recreational demand, urban
spread, and a lack of specific statutory protection.
(b) PURPOSES.--The purposes of this Act are-- (1) to secure,
protect, and preserve significant caves on Federal lands for the perpetual use,
enjoyment, and benefit of all people; and (2) to foster increased cooperation
and exchange of information between governmental authorities and those who
utilize caves located on Federal lands for scientific, education, or
recreational purposes.
(c) POLICY.--It is the policy of the United States that Federal
lands be managed in a manner which protects and maintains, to the extent
practical, significant caves.
For purposes of this Act:
(1) CAVE
The term
"cave" means any naturally occurring void, cavity, recess, or system
of interconnected passages which occurs beneath the surface of the earth or
within a cliff or ledge (including any cave resource therein, but not including
any vug, mine, tunnel, aqueduct, or other manmade excavation) and which is
large enough to permit an individual to enter, whether or not the entrance is
naturally formed or manmade. Such term shall include any natural pit, sinkhole,
or other feature which is an extension of the entrance.
(2) FEDERAL LANDS.
-The term
"Federal lands" means lands the fee title to which is owned by the
United States and administered by the Secretary of Agriculture or the Secretary
of the Interior.
(3) INDIAN LANDS.
The term
"Indian lands" means lands of Indian tribes or Indian individuals
which are either held in trust by the United States for the benefit of an
Indian tribe or subject to a restriction against alienation imposed by the
United States.
(4) INDIAN TRIBE.
The term
"Indian tribe" means any Indian tribe, band, nation, or other
organized group or community of Indians, including any Alaska Native village or
regional or village corporation as defined in, or established pursuant to, the
Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.).
(5) CAVE RESOURCE.
The term "cave
resource" includes any material or substance occurring naturally in caves
on Federal lands, such as animal life, plant life, paleontological deposits,
sediments, minerals, speleogens, and speleothems.
(6) SECRETARY.
The term
"Secretary" means the Secretary of Agriculture or the Secretary of
the Interior, as appropriate.
(7) SPELEOTHEM.
The term
"speleothem" means any natural mineral formation or deposit occurring
in a cave or lava tube, including but not limited to any stalactite,
stalagmite, helictite, cave flower, flowstone, concretion, drapery, rimstone,
or formation of clay or mud.
(8) SPELEOGEN.
The term
"speleogen" means relief features on the walls, ceiling, and floor of
any cave or lava tube which are part of the surrounding bedrock, including but
not limited to anastomoses, scallops, meander niches, petromorphs and rock
pendants in solution caves and similar features unique to volcanic caves
(a) REGULATIONS.-Not later than nine months after the date of
the enactment of this Act, the Secretary shall issue such regulations as he
deems necessary to achieve the purposes of the Act. Regulations shall include,
but not be limited to, criteria for the identification of significant caves The
Secretaries shall cooperate and consult with one another in preparation of the
regulations. To the extent practical regulations promulgated by the respective
Secretaries should be similar.
(b) IN GENERAL.-The secretary shall take such actions as may be
necessary to further the purposes of this Act. These actions shall include (but
not be limited to)-
(1) identification of significant caves on federal lands;
(A) The Secretary shall prepare an initial list of significant
caves for lands under his jurisdiction not later than one year after the
publication of final regulations using the significance criteria defined in
such regulations. Such a list shall be developed after consultation with
appropriate private sector interests, including cavers.
(B) The initial list of significant caves shall be updated
periodically, after consultation with appropriate private sector interests,
including cavers. The Secretary shall prescribe by policy or regulation the
requirements and process by which the initial list will be updated, including
management measures to assure that caves under consideration for the list are
protected during the period of consideration. Each cave recommended to the
Secretary by interested groups for possible inclusion on the list of
significant caves shall be considered by the Secretary according to the
requirements prescribed pursuant to this paragraph and shall be added to the
list if the Secretary determines that the cave meets the criteria for
significance as defined by the regulations.
(2) regulation or restriction of use of significant caves, as
appropriate;
(3) entering into volunteer management agreements with persons
of the scientific and recreational caving community; and
(4) appointment of appropriate advisory committees
(c) PLANNING AND PUBLIC PARTICIPATION.
The Secretary shall-
(1) ensure that significant caves are considered in the
preparation or implementation of any land management plan if the preparation or
revision of the plan began after the enactment of this Act;
(2) foster communication, cooperation, and exchange of
information between land managers, those who utilize caves, and the public.
Sec. 5. CONFIDENTIALITY OF
INFORMATION CONCERNING NATURE AND LOCATION OF SIGNIFICANT CAVES.
(a) IN GENERAL.-Information concerning the specific location of
any significant cave may not be made available to the public under section 552
of title 5, United States Code, unless the Secretary determines that disclosure
of such information would further the purposes of this Act and would not create
a substantial risk of harm, theft, or destruction of such cave.
(b) EXCEPTIONS.-Notwithstanding subsection (a), the Secretary
may make available information regarding significant caves upon the written
request by Federal and state governmental agencies or bona fide educational and
research institutions. Any such written request shall, at a minimum:
(1) describe the specific site or area for which information is
sought;
(2) explain the purpose for which such information is sought;
and
(3) include assurances satisfactory to the Secretary that
adequate measures are being taken to protect the confidentiality of such
information and to ensure the protection of the significant cave from
destruction by vandalism and unauthorized use.
Sec. 6. COLLECTION AND REMOVAL FROM
FEDERAL CAVES.
(a) PERMIT.-The Secretary is authorized to issue permits for the
collection and removal of cave resources under such terms and conditions as the
Secretary may impose, including the posting of bonds to insure compliance with
the provisions of any permit.
1) Any permit issued pursuant to this section shall include
information concerning the time, scope, location, and specific purpose of the
proposed collection, removal or associated activity, and the manner in which
such collection, removal, or associated activity is to be performed must be
provided.
(2) The Secretary may issue a permit pursuant this subsection
only it he determines that the proposed collection or removal activities are
consistent with the purposes of this Act and with other applicable provisions
of law.
(b) REVOCATION OF PERMIT.-Any permit issued under this section
shall be revoked by the Secretary upon a determination by the Secretary that
the permittee has violated any provision of this Act, or has failed to comply
with any other condition upon which the permit was issued. Any such permit
shall be revoked by the Secretary upon assessment of a civil penalty against
the permittee pursuant to section 8 or upon the permittee's conviction under
section 7 of this Act. The Secretary may refuse to issue a permit under this
section to any person who has violated any provision of this Act or who has
failed to comply with any condition of a prior permit.
(c) TRANSFERABILITY OF PERMITS. Permits issued under this act
are not transferable.
(d) CAVE RESOURCES LOCATED ON INDIAN LANDS.-
(1)(A) Upon application by an Indian tribe, the Secretary is
authorized to delegate to the tribe all authority of the Secretary under this
section with respect to issuing and enforcing permits for the collection or
removal of any cave resource located on the affected Indian lands.
(B) In the case of any permit issued by the Secretary for the
collection or removal of any cave resource, or to carry out activities
associated with such collection or removal, from any cave resource located on
Indian lands (other than permits issued pursuant to subparagraph (A)), the
permit may be issued only after obtaining the consent of the Indian or Indian
tribe owning or having jurisdiction over such lands. The permit shall include
such reasonable terms and conditions as may be requested by such Indian or
Indian tribe.
(2) If the Secretary determines that issuance of a permit
pursuant to this section may result in harm to, or destruction of, any
religious or cultural site, the Secretary, prior to issuing such permit, shall
notify any Indian tribe which may consider the site as having significant
religious or cultural importance. Such notice shall not be deemed a disclosure
to the public for purposes of section 5.
(3) A permit shall not be required under this section for the
collection or removal of any cave resource located on Indian lands or
activities associated with such collection, by the Indian or Indian tribe
owning or having jurisdiction over such lands.
(e) EFFECT OF PERMIT.-No action specifically authorized by a
permit under this section shall be treated as a violation of section 7.
Sec. 7. PROHIBITED ACTS AND
CRIMINAL PENALTIES.
(a) PROHIBITED ACTS.-
(1) Any person who, without prior authorization from the
Secretary, knowingly destroys, disturbs, defaces, mars, alters, removes or
harms any significant cave or alters the free movement of any animal or plant
life into or out of any significant cave located on Federal lands, or enters a
significant cave with the intention of committing any act described in this
paragraph shall be punished in accordance with subsection (b).
(2) Any person who possesses, consumes, sells, barters or
exchanges, or offers for sale, barter or exchange, any cave resource from a
significant cave with knowledge or reason to know that such resource was
removed from a significant cave located on Federal lands shall be punished in
accordance with subsection (b).
(3) Any person who counsels, procures, solicits, or employs any
other person to violate any provisions of this subsection shall be punished in
accordance with subsection (b).
(4) Nothing in this section shall be deemed applicable to any
person who was in lawful possession of a cave resource from a significant cave
prior to the date of enactment of this Act.
(b) PUNISHMENT.-The punishment for violating any provision of
subsection (a) shall be imprisonment of not more than one year or a fine in
accordance with the applicable provisions of title 18 of the United States
Code, or both. In the case of a second or subsequent violation, the punishment
shall be imprisonment of not more than 3 years or a fine in accordance with the
applicable provisions of title 18 of the United States Code, or both.
(a) ASSESSMENT.-
(1) The Secretary may issue an order assessing a civil penalty
against any person who violates any prohibition contained in this Act, any
regulation promulgated pursuant to this Act, or any permit issued under this
Act. Before issuing such an order, the Secretary shall provide such person
written notice and the opportunity to request a hearing on the record within 30
days. Each violation shall be a separate offense, even if such violations
occurred at the same time.
(2) The amount of such civil penalty shall be determined by the
Secretary taking into account appropriate factors, including (A) the
seriousness of the violation; (B) the economic benefit (if any) resulting from
the violation; (C) any history of such violations; and (D) such other matters
as the Secretary deems appropriate. The maximum fine permissible under this
section is $10,000.
(b) JUDICIAL REVIEW.- Any person aggrieved by an assessment of a
civil penalty under this section may file a petition for judicial review of
such assessment with the United States District Court for the District of
Columbia or for the district in which the violation occurred. Such a petition
shall be filed within the 30-day period beginning on the date the order
assessing the civil penalty was issued.
(c) COLLECTION.-If any person fails to pay an assessment of a
civil penalty
(1) within 30 days after the order was issued under subsection
(a), or
(2) if the order is appealed within such 30-day period, within
10 days after the court has entered a final judgment in favor of the Secretary
under subsection(b), the Secretary shall notify the Attorney General and the
Attorney General shall bring a civil action in an appropriate United States
district court to recover the amount of penalty assessed (plus costs,
attorneys' fees, and interest at currently prevailing rates from the date the
order was issued or the date of such final judgment, as the case may be). In
such an action, the validity, amount, and appropriateness of such penalty shall
not be subject to review.
(d) SUBPOENAS.-The Secretary may issue subpoenas in connection
with proceedings under this subsection compelling the attendance and testimony
of witnesses and subpoenas duces tecum, and may request the Attorney General to
bring an action to enforce any subpoena under this section. The district courts
shall have jurisdiction to enforce such subpoena and impose sanctions.
Sec. 9. MISCELLANEOUS PROVISIONS.
(a) AUTHORIZATION.-There are authorized to be appropriated
$100,000 to carry out the purposes of this Act.
(b) EFFECT ON LAND MANAGEMENT PLANS.-Nothing in this act shall
require the amendment or revision of any land management plan, the preparation
of which began prior to the enactment of this Act.
(c) FUND.-Any money collected by the United States as permit
fees for collection and removal of cave resources; received by the United
States as a result of the forfeiture of a bond or other security by a permittee
who does not comply with the requirements of such permit issued under section
7; or collected by the United States by way of civil penalties or criminal
fines for violations of this Act shall be placed in a special fund in the
Treasury. Such moneys shall be available for obligation or expenditure (to the
extent provided for in advance in appropriation Acts) as determined by the
Secretary for the improved management, benefit, repair, or restoration of
significant caves located on Federal lands.
(d) Nothing in this act shall be deemed to affect the full
operation of the mining and mineral leasing laws of the United States, or
otherwise affect valid existing rights.
(a) WATER.-Nothing in this Act shall be construed as authorizing
the appropriation of water by any Federal, State, or local agency, Indian
tribe, or any other entity or individual. Nor shall any provision of this Act-
(1) affect the rights or jurisdiction of the United States, the
States, Indian tribes, or other entities over water of any river or stream or
over any groundwater resource;
(2) alter, amend, repeal, interpret, modify, or be in conflict
with any interstate compact made by the States; or
(3) alter or establish the respective rights of States, the
United States, Indian tribes, or any person with respect to any water or
water-related right.
(b) FISH AND WILDLIFE.-Nothing in this Act shall be construed as
affecting the jurisdiction or responsibilities of the States with respect to
fish and wildlife.
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