FEDERAL CAVE RESOURCES PROTECTION ACT OF 1988
(text from the December 1988, NSS News)
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.
SEC. 3. DEFINITIONS.
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 man-made excavation) and
which is large enough to permit an individual to enter, whether or not the
entrance is naturally formed or man-made. 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 wails,
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.
SEC. 4. MANAGEMENT ACTIONS.
(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 this 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:
(t) 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 if 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 the 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 bc 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.
SEC. 8. CIVIL PENALTIES.
(a) ASSESSMENT.-(t) 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 subpoenas 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.
SEC. 10. SAVINGS PROVISIONS.
(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.