Question about the Cave Protection Act

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Question about the Cave Protection Act

Postby Rick Brinkman » Nov 30, 2009 12:31 pm

I was looking into how the Cave Protection Act affects local cave managers, specifically USFS, and read these two portions of the act:


The Secretary Shall---
(2) foster communication, cooperation, and exchange of information between land managers, those who utilize caves, and the public.


But:
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.



So my questions are:
Am I correct that NO ONE, except the Secretary of Agricuture(Forest Service) or the Secretary of the Interior(BLM) can share information with ANY of the public....including cavers? And IF SO, does that mean, that BY LAW, federal employees can't give back cave information to cavers without ok'ing it with the appropriate Secretary first?

If all of the above is true....what incentive, as a caver, do I have to work with a federal agency? Seems to me that the agencies want and need cave info from cavers, but by law, can't give any of that info back...... :shrug:

Or am I missing something here, because I KNOW that there are places in the country that government agencies have good and mutual relationships with cavers........
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Re: Question about the Cave Protection Act

Postby BrianC » Nov 30, 2009 1:36 pm

interesting Rick! :shhh:
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Re: Question about the Cave Protection Act

Postby Phil Winkler » Nov 30, 2009 2:01 pm

Rick,

I vaguely remember this being discussed back in 1986 or so when it was first proposed and hearings held in Washington. I would ask John Scheltens as he got his then Senator Tom Daschle to sponsor the bill. John's email address should be in the Members Manual as I don't think he posts here.
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Re: Question about the Cave Protection Act

Postby John Lovaas » Nov 30, 2009 2:21 pm

Rick-

I was just looking at this website-

http://wildlifelaw.unm.edu/fedbook/fedcave.html

Which has the Federal Cave Resources Protection Act (16 U.S.C. §§ 4301-4310, November 18, 1988, as amended 1990):

The specific location of a significant cave cannot be made available to the public unless the Secretary determines that disclosure of this information would further the Act's purposes and not create a substantial risk of harm, theft, or destruction of the cave. Information on significant caves may be made available on written request by federal or state governmental agencies or educational and research institutions.

So information can be made available to a "research institution"- I'd imagine NSS Projects or the Cave Research Foundation would fall under the definition of research institution. I'll look for a Federal definition of research institution.

Maybe there's an issue of semantics here, I think. I saw this sentence-

The Secretary must take other actions to further the Act's purposes, including: identification of significant caves on federal lands...

and thought to myself, "our Agriculture and Interior Secretaries are not out ridgewalking on federal lands, identifying significant caves..." :tonguecheek:

I don't understand the intricacies of the writing of statutes, but I imagine that there is an implication that when a Secretary is tasked with some kind of responsibility, the Secretary delegates some part of the responsibility to subordinates. That being said, I never took a lick of poli sci in college, and I can't remember much from high school civics.

There's this sentence too-

The Secretary must ensure that significant caves are considered in the preparation or implementation of land management plans, and foster communication and cooperation among land managers, cave users and the public.

Communication might not be the same as "tell me where every freakin' cave is", but it's a start.



If all of the above is true....what incentive, as a caver, do I have to work with a federal agency?


Altruism, I reckon.

Seems to me that the agencies want and need cave info from cavers, but by law, can't give any of that info back......


I had a surreal experience in Arkansas years ago; we were applying for a USFS permit for a cave(as a tourist trip), and none of us had a very good idea of where the cave was. The agency person explained the Act, and he couldn't give us a better location than a quarter quarter section description. He also explained that there was an adjacent cave with an Endangered bat colony, and we definitely shouldn't enter that cave.

He had entrance descriptions for both caves- and they were almost identical. It was a Lady and the Tiger scenario- we wouldn't know which cave we were in until we did - or did not - come across the bat colony.

Lucky for us, we found neither of the caves that day.
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Re: Question about the Cave Protection Act

Postby Rick Brinkman » Nov 30, 2009 2:45 pm

Yes, I've also had the protection act repeated back to me by USFS and BLM people. I've also had a few VERY good experiences with different people from the same offices.

What made me look into this a little closer... is that we have a new USFS geologist that is also the cave specialist. He is asking for cave locations. Understandable. I'm just hesitant to comply because I can see the potential for being gated out of a cave(s) that I found, explored, and surveyed. And it would be easy to use the excuse of safety(due to the recent UT tragedy) or WNS. Doesn't mean that he WOULD do that, but what about the cave specialist after him...or the next?

Actually, I thought that there was a "loop" in the law that allowed agencies, at the local level, to use their discretion on who they could deal with. (i.e. trusted cavers) But as I read it, there isn't.
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Re: Question about the Cave Protection Act

Postby John Lovaas » Nov 30, 2009 3:20 pm

Rick Brinkman wrote:I'm just hesitant to comply because I can see the potential for being gated out of a cave(s) that I found, explored, and surveyed.


Well, if their management policy is to gate all caves, and they have the money for it, I suppose it could happen. I'm of the mind that I should enable a land owner or land manager to know more about their land, rather than less. And not telling a land owner or land manager about a cave on their property is not cool- but that's just me.

And if it did get gated(and gates are unattractive and not always reliable protection for the cave and its contents), I'd ask for a key, I suppose. There is the idea that no gate that can keep me out of a cave- IF I am willing to work with the land owner or manager and provide something useful to them. So far, it has worked for me.

Rick Brinkman wrote:Actually, I thought that there was a "loop" in the law that allowed agencies, at the local level, to use their discretion on who they could deal with. (i.e. trusted cavers) But as I read it, there isn't.


I guess that's what I was thinking before- if we look at these two sentences:

The Secretary must take other actions to further the Act's purposes, including: identification of significant caves on federal lands...


and

...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.

would we agree that Ken Salazar and Tom Vilsack aren't personally taking actions or assessing requests? Isn't the work outlined in the two sentences performed by the departments? Just wondering.
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Re: Question about the Cave Protection Act

Postby Phil Winkler » Nov 30, 2009 3:59 pm

I believe these legal statements referencing the Secretary are similar to military regs where they state "the Commander will...". Employees of each department do all their work in the name of the Secretary who, ultimately, is responsible just like a Commander is.
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Re: Question about the Cave Protection Act

Postby Evan G » Nov 30, 2009 4:17 pm

Actually, I thought that there was a "loop" in the law that allowed agencies, at the local level, to use their discretion on who they could deal with. (i.e. trusted cavers) But as I read it, there isn't.


As you know Rick, I work directly with the Cave Lead in the BLM Cody Field office on many projects deal with the caves on Little Mountain. The way we got around the Cave Pro Act was I became BLM Volunteer, we freely exchange information back and forth. We are trying to create a database so that a Little Mountain management plan will be concise and library of material pertaining to the Bighorn Basin Caves.

I believe these legal statements referencing the Secretary are similar to military regs where they state "the Commander will...". Employees of each department do all their work in the name of the Secretary who, ultimately, is responsible just like a Commander is.


That's is how it was related to me.
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Re: Question about the Cave Protection Act

Postby Rick Brinkman » Nov 30, 2009 4:37 pm

Thanks guys. That really helps. Hopefully there will be more comments about this.

Looking at the Act like you guys are, I'd now feel much better about meeting with the cave specialist. And I'd have some information to back up some of my concerns.
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Re: Question about the Cave Protection Act

Postby Phil Winkler » Nov 30, 2009 4:44 pm

Rick, here is one more way of looking at it. Congress explicity gives the Secretary the authority and responsiblity. The Secretary, in turn, can delegate authority, but he/she is still responsible.
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Re: Question about the Cave Protection Act

Postby ArCaver » Nov 30, 2009 5:38 pm

John Lovaas wrote:I had a surreal experience in Arkansas years ago; we were applying for a USFS permit for a cave(as a tourist trip), and none of us had a very good idea of where the cave was. The agency person explained the Act, and he couldn't give us a better location than a quarter quarter section description. He also explained that there was an adjacent cave with an Endangered bat colony, and we definitely shouldn't enter that cave.

He had entrance descriptions for both caves- and they were almost identical. It was a Lady and the Tiger scenario- we wouldn't know which cave we were in until we did - or did not - come across the bat colony.

Lucky for us, we found neither of the caves that day.


All inventoried caves on federal land should have a small brass cap inside the dripline, on the right side as you enter, with a number identifying the cave. Ask for the cap number. If you only enter the cave after you find the cap and identify the cave by number you should be OK. What cave was it you were looking for?
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Re: Question about the Cave Protection Act

Postby wyandottecaver » Nov 30, 2009 6:12 pm

As was alluded to earlier authority in federal statutes can and often is delegated down to lower level folks typically the property manager or equivilent. Also, how those statutes are interpreted is based both on official promulgation (defining the rules) and local viewpoints in many cases.

Also, even though the Agency may have restrictions on the data, you are usually free to use your own data as you see fit. Always keep in mind that the idea of public ownership aside THEY are the landowner, and like any landowner can be wonderful, horrible, capricious, or replaced by a new person with different views.

Using my own area of experiance, under the same law (endangered species act) different regions of the USFWS often interpreted things far differently based on who was in what office. I suspect the same is true in this case. My career includes positions as both a State and Federal employee including cave management, and in my opinion you should treat data sharing the same way you would with the public....carefully. Policies, people, attitudes, and circumstances change. Be aware that in many cases as an agency official you are always subject to political interference or simple lack of understanding from those higher up.

My personal approach to data sharing with agencies as a private caver is make them generally aware of the landscape conditions (i.e. number of caves in a given management unit) coupled with making them aware of my willingness to share specific data on a need to know basis such as new construction, logging, etc.

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Re: Question about the Cave Protection Act

Postby John Lovaas » Nov 30, 2009 6:22 pm

ArCaver wrote:All inventoried caves on federal land should have a small brass cap inside the dripline, on the right side as you enter, with a number identifying the cave. Ask for the cap number. If you only enter the cave after you find the cap and identify the cave by number you should be OK. What cave was it you were looking for?


I've never seen a monument marker in any of the Buffalo River caves I've visited- but that's most likely due to me not being observant!

Optimus was one of the caves- but I can't remember if it was the one we wanted to visit or not. Never found an entrance that day. Nice walk in the woods, and some interesting features, like a huge round limestone pillar, leaning against the base of a bluff- maybe 25' tall? I've never seen anything quite like it.
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Re: Question about the Cave Protection Act

Postby ArCaver » Nov 30, 2009 6:52 pm

John Lovaas wrote:
ArCaver wrote:All inventoried caves on federal land should have a small brass cap inside the dripline, on the right side as you enter, with a number identifying the cave. Ask for the cap number. If you only enter the cave after you find the cap and identify the cave by number you should be OK. What cave was it you were looking for?


I've never seen a monument marker in any of the Buffalo River caves I've visited- but that's most likely due to me not being observant!

Optimus was one of the caves- but I can't remember if it was the one we wanted to visit or not. Never found an entrance that day. Nice walk in the woods, and some interesting features, like a huge round limestone pillar, leaning against the base of a bluff- maybe 25' tall? I've never seen anything quite like it.


Optimus is one I haven't been in yet. if when they rescind this closure I'll pull a permit. You up for a another try?
I might just have to go look for that pillar. Did you get pictures?
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Re: Question about the Cave Protection Act

Postby Teresa » Dec 1, 2009 10:21 am

Rick Brinkman wrote:I was looking into how the Cave Protection Act affects local cave managers, specifically USFS, and read these two portions of the act:
But:
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.


So my questions are:
Am I correct that NO ONE, except the Secretary of Agricuture(Forest Service) or the Secretary of the Interior(BLM) can share information with ANY of the public....including cavers? And IF SO, does that mean, that BY LAW, federal employees can't give back cave information to cavers without ok'ing it with the appropriate Secretary first?


The question of the Secretary personally aside, trying to hide caves on federal lands is a whole lot harder than one might think. The FCRPA is trumped by freedom of speech -- and the phrase "disclosure of such information would further the purposes of the Act" is the loophole. How an employee and his or her supervisor interpret this phrase give them some discretion to deny information to a nose-ringed dude with a six pack in hand, but share it with known cavers under an MOU acting to "further the purposes of the Act." How it is interpreted in fact depends as much on the employee deciding, and the attitude of that particular agency location. The non-employee public (including cavers) is under no legal constraint not to share locations on federal lands, except the rule of common sense. The law restricts the freedom of speech of employees, but does not eliminate it entirely. The FCRPA doesn't even apply to all federal lands or land holding agencies, just Interior and Agriculture.

arcaver -- I seriously doubt if all caves on the Buffalo, or the Ozark National Forest have brass markers. I know this is not true for the Mark Twain or likely for most caves on Ozark Riverways. Too many caves, not enough money, too little time.
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