Dino wars

Legal wranglings over some old bones...money always appears to be a factor.

"The Dinosaur Fossil Wars"

Across the American West, legal battles over dinosaur fossils are on the rise as amateur prospectors make major finds

by

Donovan Webster

April 2009

Smithsonian

Editor’s note: On August 6, 2009, the 8th U.S. Circuit Court of Appeals upheld an earlier ruling that Ron Frithiof did not engage in fraud and that he and his team can retain ownership rights of Tinker the Tyrannosaurus .

Buried beneath a barren stretch of South Dakota badland, the deceased appeared small for its species. As Ron Frithiof, an Austin, Texas, real-estate developer turned dinosaur prospector, dug cautiously around it in a rugged expanse of backcountry, he was growing increasingly confident that he and his partners were uncovering a once-in-a-lifetime find.

Ever since he had heard about a private collection going up for sale in the mid-1990s, Frithiof, now 61, had been hunting dinosaurs. "I'd thought fossils were things you could see only in museums," he says. "When I learned you could go out and find stuff like that, to keep or even to sell, it just lit a fire in my imagination. I studied every book I could, learned techniques of extraction. Fossils inspire a powerful curiosity."

Frithiof was keenly aware that the skeleton of a mature Tyrannosaurus rex ( "Sue," named in honor of prospector Sue Hendrickson, who made the find in western South Dakota in 1990) had been auctioned off-at Sotheby's in New York City in 1997-for more than $8 million. The specimen that Frithiof and his fellow excavators began unearthing in 1998, in a painstaking, inch-by-inch dig was about four feet tall, less than half Sue's height. With unfused vertebrae and scrawny shin and ankle bones, the skeleton was almost certainly that of a juvenile. If so, it would likely be the most complete young T. rex ever discovered. A find of this magnitude, Frithiof knew, would create a sensation. Its value would be, as he put it, "anyone's guess." $9 million? $10 million? This was uncharted territory.

For nearly three years, the excavators-including longtime fossil hunter Kim Hollrah, who had first investigated the site-continued their meticulous work. Whenever Frithiof, Hollrah and their companions could coordinate time off from work, they would drive 24 hours straight, from Texas to the dig site, north of Belle Fourche, South Dakota, which Frithiof had leased from a local rancher in 1998. "Most years, we'd spend about a month working," he recalls. "Thirty or 40 days a summer, before the weather would drive us off."

Braving blistering 100-degree temperatures, the crew took every precaution to keep the specimen intact. At the same time, they were attempting to wrest it from the ground before South Dakota's brutal winter set in. "That's one of the paradoxes of fossil collecting," says Frithiof. "Once a specimen is exposed to the elements, it's a race to get it out in as responsible a way as possible, to protect it from wind and rain and weathering. It's like a slow-motion race."

Paleontological excavation is nothing if not grueling. "We worked inch by inch, brushing bits of rock and soil away, taking a pin to strip away just that next little bit of rock and earth [to reveal the rough contours]," Frithiof told me. On a good day, an experienced fossil excavator might uncover only a few inches of skeleton. Frithiof and the others gingerly pried out each section, still enclosed in the crumbly chunk of rock matrix that had originally surrounded it. In preparation for transport, the prospectors then wrapped the sections in layers of tissue paper, aluminum foil and plaster.

As the dig moved forward, Frithiof's colleagues, with a nod to "Sue" (today a centerpiece attraction at Chicago's Field Museum), decided the new T. rex needed a name. The one they came up with honored Frithiof's role as the project's financial backer. "I don't know why my parents started calling me Tinker," says Frithiof. "Somehow, it stuck."

In 2001, as the excavation of Tinker headed toward completion, the team made another remarkable discovery: evidence of two additional T. rex skeletons on the site. By that point, a children's museum in the Midwest had indicated its willingness to pay up to $8.5 million for Tinker. During the prospective purchaser's pre-transaction research, however, a massive legal hiccup was uncovered-one that Frithiof and his lawyers would later insist had been an honest mistake.

Tinker, as it turned out, had been found not from local rancher Gary Gilbert's land but from adjacent property owned by Harding County, South Dakota. In November 2000, Frithiof, he says, with an eye to future excavations, had leased the parcel from the county; the agreement stipulated that the county would get 10 percent of the sale price for any fossils uncovered there. Now, in August 2004, Harding County filed a civil lawsuit in Federal District Court against Frithiof and his partners alleging fraud, trespass and conspiracy.

Frithiof's world caved in. After devoting years to Tinker, the prospector was suddenly in danger of going to jail for his efforts. "This whole experience has been a disaster," he says. "[With] all the lawyers' fees, not to mention the disruption of my life, it's cost me a fortune. And it's been very hard on my family. You gotta remember, I've never been in trouble in my life. Not even a traffic ticket." The disputed dinosaur, according to Frithiof's attorney Joe Ellingson, "wrecked my client's life."

Moreover, the fossil was consigned to limbo. As a result of byzantine twists in the litigation, Tinker's bones would soon be placed under another lawyer's supervision, stored in plastic tubs at an undisclosed location in Harrisburg, Pennsylvania-1,400 miles from the excavation site.

Across the American West and Great Plains, an intensifying conflict over the excavation of fossils-everything from a five-inch shark's tooth, which might sell for $50, to Frithiof's spectacular T. rex-has pitted amateur excavators against both the federal government and scientists. Scores, perhaps thousands, of prospectors-some operating as poachers on federally protected land-are conducting digs across hundreds of thousands of square miles from the Dakotas to Texas, Utah, Wyoming and Montana.

"In terms of digging for fossils, there are a lot more people" than there used to be, says Matthew Carrano, curator of dinosauria at the Smithsonian Museum of Natural History. "Twenty years ago, if you ran into a private or commercial fossil prospector in the field, it was one person or a couple of people. Now, you go to good fossil locations in, say, Wyoming, and you find quarrying operations with maybe 20 people working, and doing a professional job of excavating fossils."

Fueling the frenzy is skyrocketing market demand, as fossils, long relegated to the dusty realm of museum shelves, have entered the glitzy spheres of home décor and art. "There have always been private fossil collectors," says David Herskowitz of Heritage Auction Galleries in Dallas. "The difference is, historically, a private fossil collector was wealthy. But today, interest in fossils has grabbed the attention of a broad swath of the population. That means a lot more people are collecting."

Who's buying these days? Just about anyone. With prices to suit virtually any budget, one can own an ancient remnant of life on earth: a botanical fossil, such as a fern, may cost as little as $20; a fossil snail, perhaps, may well go for $400.

The real action, however, is in the big vertebrates: dinosaurs that roamed the earth between 65 million and 220 million years ago. These are the specimens attracting the high rollers-serious collectors. Actors Harrison Ford and Nicolas Cage, for example, are rumored to have impressive collections.

The paleo-passion, however, extends far beyond celebrities. "The group who used to be serious fossil collectors-that's really grown," says money manager Charles Lieberman of Advisors Capital Management in Hasbrouck Heights, New Jersey. At his office, Lieberman displays several impressive specimens, including a three-foot-long Cretaceous herbivore, Psittacosaurus. "Since the book and movie Jurassic Park," he adds, "interest in fossil collecting has gone into overdrive, affecting demand and elevating prices."

The rise in prices is fueling the prospecting boom in the Great Plains and West-not necessarily because of a higher concentration of fossils there, but because the American West is one of the world's easiest places to find them. "If you had flown around the world 150 million years ago, the West wouldn't be more populated by dinosaurs than anywhere else," says the Smithsonian's Carrano. "But in the West, the rock layers laid down during the age of dinosaurs are currently exposed. It also helps that the landscape is dry, so there's not a lot of vegetation covering the rock. And it's erosive, so new rock is constantly being uncovered."

While fossils can now be found in stores from Moab to Manhattan, the most unusual (and valuable) specimens tend to show up at auction houses-or vanish into the shadowy world of private purchasers, some of whom are buying on the black market. At the Tucson Gem and Mineral Show, for instance, it is possible to obtain illegally taken fossils. While Carrano does not attend the show, it's well-known, he says, that, "if you spend the week building trust with some of the sellers, you’ll get invited back to a hotel room and be shown exquisite fossil specimens that were probably taken illegally. We’re talking museum-grade specimens that are going to disappear into private collections."

The auction houses, of course, make sure their offerings come with documented provenance. In only a few hours in April 2007, Christie's in Paris gaveled off fossils worth more than $1.5 million-including a dinosaur egg that went for $97,500 and the fossilized skeleton of a Siberian mammoth that fetched $421,200. In December 2007, a 70-million-year- old mosasaur a-30-foot carnivorous underwater reptile excavated in North Africa-brought more than $350,000 at Los Angeles auctioneer Bonhams & Butterfields. In January 2008, Heritage Auction Gal­leries in Dallas sold the largest mastodon skull ever found for $191,000 and a 55-million-year-old lizard from the Dominican Republic, its flesh and skin preserved in amber, for $97,000. "The day's tally was $4.187 million," says auction director Herskowitz. "While I can't disclose who my buyers were, I can say many of them have small to substantive museums on their properties."

Then there's eBay. When I logged on recently, I discovered 838 fossil specimens for sale, including a spectacular ammonite-an ancestor of today's chambered nautilus-expected to go for upward of $3,000. Very little was disclosed about where any of the fossils came from. "Here's what I can tell you about eBay," says Carrano. "If a fossil being sold there comes from Morocco, China, Mongolia, Argentina or a number of other nations, at some point it was part of an illegal process, since those countries don't allow commercial fossil export."

In the United States, the law regulating fossil excavation and export is far from straightforward. Property statutes state that any fossil taken with permission from privately owned land may be owned and sold-which is why legitimate excavators usually harvest fossils from individual landowners. A complex series of regulations apply to fossils removed from federal and state land (including Bureau of Land Management [BLM] tracts, national forests and grasslands, and state and national parks) and what are known as jurisdictional lands-for example, the public land held by Harding County, South Dakota.

To complicate matters, some fossil materials-limited amounts of petrified wood or fossil plants, for example-may be removed from certain public lands without oversight or approval. In most cases, however, permits are required; applications are reviewed according to a time-consuming process. Prospectors who want to cash in quickly on a single find are often reluctant to abide by the law. Given that there are nearly 500 million acres of publicly held land in the United States (two-thirds of which contain some of the best excavation zones in the world), prospectors who dig illegally are not often caught. "Newly harvested fossils are flooding the commercial market," says Larry Shackelford, a special agent with the BLM in Salt Lake City. "Running down each one and checking where it came from? We don't have the manpower."

In fact, law enforcement officials can barely keep up with prosecutions already underway. Although state and federal officials may not discuss cases currently in litigation, they acknowledge that volume is increasing. "In most districts, we easily see one or two new leads a month," says Bart Fitzgerald, a BLM special agent in Arizona. "Mostly these become civil cases. We understand that enthusiasm gets the best of people sometimes. Someone finds an amazing fossil and they take it home. Mostly we just want to recover the fossil-it's government property. But once in a while, we see a case where clearly the intent was criminal: where people were knowingly extracting fossils from public land for private profit. Those we prosecute criminally."

A major criminal case began unfolding in 2006, when a largely intact Allosaurus-a meat-eating older cousin of T. rex-was taken from public land in Utah. The excavator went to great lengths to look legitimate, including creating bogus letters of provenance. The dinosaur bones were first transported from Utah to a U.S. buyer, then to a purchaser in Europe, before finally being sold to a collector in Asia. In February 2007, the Allosaurus poacher-who had been turned in anonymously-was convicted on one count of theft of federal property.

Several years earlier, a high-profile case involved paleo-prospector Larry Walker, who discovered a cache of fossil Therizinosaurs-a rare dinosaur/bird hybrid-in the desert outside his Moab, Utah, hometown. Working at night beneath camouflage netting, Walker excavated 30 to 40 of the creatures' distinctive ripping claws, then sold the specimens at the Tucson Gem and Mineral Show for a total take of roughly $15,000.

"He knew what he was doing was illegal," says Loren Good, a special agent for the BLM's Idaho district. "Working with the FBI, we did a joint investigation into the source of the claws and prosecuted Mr. Walker. He received a ten-month incarceration and a $15,000 fine."

"These cases come in all forms," says the BLM's Fitzgerald. "Take the example of some tour operators in Montana. They took a group of tourists out recently on a fossil-hunting trip, strayed onto public land and extracted fossils from a good site there. Was it an honest mistake or a calculated commercial move?" Fitzgerald asks. "After all, the tour operators carried GPS units; they knew precisely where they were." (Charges have not yet been filed.)

In the Tinker case, the prosecution claimed that Frithiof knew he was on county property when he found the Tinker specimen, that he had signed the agreement with Harding County without informing officials of the find and that he had negotiated a perhaps $8.5 million sale without telling the county. "Harding County believes Mr. Frithiof first discovered the specimen's location, then induced the county into a lease, knowing the value of what existed on the property without disclosing it to us," says Ken Barker, a Belle Fourche, South Dakota, attorney retained by the county to prosecute the case. "Because of this, we seek to void the lease agreement, entered into fraudulently, and to recover the county's property."

Frithiof sees things differently. It wasn't until the prospective purchaser's survey in 2001, he says, that all parties learned that the Tinker site was on county land. "We were something like 100 feet across the [county] property boundary," he says. "Even the rancher we were working with believed we were on his land. It was an honest mistake. And I already had a lease on that land with Harding County."

"It wasn't like we were sneaking around," Frithiof adds. "Our find had been in the newspaper. We'd been on the Discovery Channel. We'd had prominent paleontologists, like Bob Bakker from the University of Colorado, out to look at it. What we were doing was all out in the open. Nobody thought we were doing anything illegal...at all."

In June 2006, Judge Richard Battey of the United States District Court voided the agreement between Frithiof and the county and ruled, on the basis of a technicality, that Tinker belonged to Harding County. Frithiof appealed. In September 2007, a United States Court of Appeals panel reversed the decision. The Tinker fossil, they ruled, was Frithiof's property; only the original contract's 10 percent payment was owed to Harding County. The appeals court then sent the case back to Federal District Court for final disposition. Frithiof had no choice but to wait.

In the meantime, the location of Tinker-and the fossil's condition-had become a source of contention. Before the legal wrangling began, Frithiof had delivered sections of the skeleton to private curators Barry and April James, who specialized in preparation of paleontological specimens for display, at their Sunbury, Pennsylvania, firm, Prehistoric Journeys. (The process involves removal of the stone matrix encasing the excavated bones.) Once the litigation proceeded, however, the Jameses, who say they had put $200,000 worth of labor and more than two years into the project, were barred from completing the work or collecting payment from Frithiof. Their company filed for bankruptcy in 2005.

"Now I have the Tinker fossil in my possession," says Larry Frank, a Harrisburg, Pennsylvania, attorney who is trustee of the James bankruptcy. "I've filed an artisans' lien against the value of the specimen. Until the matter is resolved, the skeleton will sit in large plastic containers in my possession. We believe that's a good, safe place for it."

For scientists, commercial excavation of fossils-legal or not-raises troubling questions. "For me," says Mark Norell, chairman and curator of vertebrate paleontology at the American Museum of Natural History in New York City, "the big concern with all this private digging is that it may be robbing science of valuable knowledge."

Norell believes that anyone harvesting fossils "needs to be considerate of scientific data surrounding the specimen." Context is important. "A lot of the guys out there digging commercially are just cowboys; they don't care about the site where the fossil sits, how it's oriented in the earth, what can be found around it to give us clues to what the world was like when that fossil animal died." Some commercial excavators "want only to get the specimen out of the ground and get paid-so we lose the context of the site as well as the fossil itself."

The Smithsonian's Carrano says all scientifically significant fossil specimens, whether from public or private lands, should be placed into museums for study in perpetuity. "Any unique fossil has more value scientifically and educationally than we can ever place a cash value on," he adds. "In a perfect world, there'd be a way to vet every fossil collected: the significant ones would be retained and studied; others could go to commercial use. Not every fossil shark's tooth is significant, but some are. Let's retain those significant ones for study."

For the past several years, the Society of Vertebrate Paleontology, one of the fossil world's preeminent professional organizations, has lobbied in support of Congressional legislation that would protect fossils taken from public lands. Since 2001, a bill introduced by Representative James McGovern, Democrat of Massachusetts-the Paleontological Resources Preservation Act-has languished in both the House and Senate. The delay, some proponents believe, stems from some western lawmakers' reluctance to add any regulations regarding public lands. If passed into law, the act would require that only trained, federally certified professionals be allowed to extract fossils from public lands-and would substantially increase penalties for illegal fossil excavation.

The proposed legislation has galvanized critics, from mining company executives to paleontology prospectors, many of whom argue that improved enforcement of existing laws is all that is needed. "This new bill provides no funding for additional federal agents to police these areas, meaning it has no teeth," says Jack Kallmeyer, a paleontological prospector. "As long as there is demand for the commodity, without sufficient enforcement personnel, nothing will stop illegal collecting."

Kallmeyer also notes that proposed and existing fossil-extraction laws do not address a critical threat to the nation's fossil heritage. "There are a number of dinosaur and [other] vertebrate fossils out there [on public lands] that are not rare. Professional paleontologists aren't interested in excavating them, as those specimens are well known and well studied. Why shouldn't amateur or commercial collectors be allowed to extract those?" Fossils left exposed over years, Kallmeyer adds, will eventually erode away.

But paleontologist James Clark of George Washington University in Washington, D.C., who serves on the government liaison committee for the Society of Vertebrate Paleontology, disagrees. "Nobody knows how much fossil material is being taken off public lands and smuggled out," he says. "We don't know the scale of what's being lost." Clark, who sees the proposed federal bill as a step forward, believes that existing legislation is too nonspecific and confusing. "As it stands now, the situation is a free-for-all," he says.

Through the winter of 2007-2008, as Frithiof awaited another ruling from Federal District Court, he and lawyer Joe Ellingson hunkered down. "We don't want to say much," Ellingson told me. "We don't want to antagonize anyone in any way. We just want to wait and get our ruling."

The delay, however, proved excruciating for Frithiof, who continued living near Austin, selling real estate. "There's not one hour," he says, "that it wasn't in the back of my mind. And that takes a toll. Even a physical toll." Frithiof says he developed cardiac problems. "I just want this all to be over," he says, "so I can go back to my site and keep working. We've found evidence of two other T. rex specimens there, but we don't know if they're complete or not. We've covered them up to protect against the elements. Until all this is resolved, we've been barred from working."

At last, on February 5, 2008, Judge Battey ruled that Frithiof's lease with Harding County was legal and enforceable. Frithiof owned Tinker, though he would have to give the county 10 percent of any profits from its sale. Harding County, the decree said, "knowingly entered into this contract, and now must live with the consequences of its actions." For Frithiof, the ruling meant "a huge weight had disappeared off my life."

But within weeks of the ruling, Harding County appealed yet again, sending the case back into court and consigning Frithiof once again to legal limbo. After more than four years of litigation, disposition of the appeal is expected within weeks. "This experience has removed the joy of fossil hunting for me," says Frithiof. "I haven't done one day of digging since the day initial charges were brought."

And yet, Frithiof tells me, an even larger question preoccupies him. "My thoughts always return to the exposed fossils out there on our public land," he adds. "Fossils that are going unexcavated due to lack of interest. The ones paleontologists are never going to extract because they are fossils that are too common, but which some collector might cherish."

Frithiof insists that careful amateur excavators can make a significant contribution to science. "The fossils are out there, wind and rain weathering them, while people argue about who is allowed to collect them and who isn't. After a year or two of exposure, any fossil begins to disintegrate and crumble to dust." And then, he adds, "Well, nobody gets them. They're just gone."

Writer Donovan Webster lives in Charlottesville, Virginia. Photographer Aaron Huey is based in Seattle, Washington.

Editor's Note: An earlier version of this article misspelled the name of paleontologist Bob Bakker and incorrectly stated he is with the University of Montana. He is with the University of Colorado.

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