Black Hills Institute of Geological Research v. Fort Peck Paleontology et al

Filing 101

AMENDED Statement of Undisputed Fact re: 80 MOTION for Partial Summary Judgment. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Tease, Antoinette) Modified on 10/20/2011 to add word "Amended". (SLR, ).

Antoinette M. Tease
ANTOINETTE M. TEASE, P.L.L.C.
PO Box 51016
Billings, MT 59105
[phone]
[e-mail]
Attorney for Defendant
Fort Peck Paleontology, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
BLACK HILLS INSTITUTE OF
GEOLOGICAL RESEARCH, INC., a
South Dakota corporation,

Cause No. CV-10-76-GF-SEH

Plaintiff,
vs.
FORT PECK PALEONTOLOGY,
INC., a Montana corporation, JOHN
RABENBERG, an individual, DICK
BARSNESS, an individual, JOHN
DOE(S), individuals and entities,
Defendants.

DEFENDANT FORT PECK PALEONTOLOGY, INC.’S
AMENDED STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
Pursuant to L.R. 56.1(a), and in support of its Motion for Partial Summary
Judgment, Defendant FORT PECK PALEONTOLOGY, INC. (“FORT PECK”),

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by and through its undersigned counsel, submits the following Statement of
Undisputed Facts:
1.

On August 12, 1990, Susan Hendrickson, a member of BHI’s team,

discovered a Tyrannosaurus Rex, which became known as SUE (“the T. rex
SUE”), on the South Dakota ranch of Maurice Williams. See Peter Larson &
Kristin Donnan, Rex Appeal 7-10 (2004)1; see also Black Hills Inst. of Geological
Research v. S.D. Sch. of Mines and Tech., 12 F.3d 737, 741 (8th Cir. 1993).2
2.

“Since 1969, the United States has held [Maurice William’s] ranch

land in trust for the sole use and benefit of Williams, an Indian.” Black Hills Inst.
of Geological Research v. S.D. Sch. of Mines and Tech., 12 F.3d 737, 739 (8th Cir.
1993).
3.

BHI’s team excavated the fossilized remains of the T. rex SUE, from

August 14, until September 1, 1990, at which point BHI transported the T. rex SUE
to the Black Hills Museum of Natural History Foundation, Inc., in Hill City, South
Dakota. See Larson & Donnan, supra, 48, 74; see also Black Hills Inst. of
Geological Research v. U.S. Dep’t of Justice, 967 F.2d 1237, 1239 n.3 (8th Cir.
1992).3

1

Relevant excerpts from the book Rex Appeal are attached hereto as Exhibit A.
A copy of this decision is attached hereto as Exhibit B.
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A copy of this decision is attached hereto as Exhibit C.
2

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4.

From May 14th until May 16th, 1992, as part of a criminal

investigation and pursuant to a search warrant, the T. rex SUE was seized, along
with the other fossils taken from Maurice Williams’ ranch, by the FBI, sheriff’s
officers, and the National Guard from the Black Hills Institute, and taken to the
South Dakota School of Mines and Technology. See Black Hills Inst. of
Geological Research v. S.D. Sch. of Mines and Tech., 12 F.3d 737, 739-40, 743 n.6
(8th Cir. 1993); see also Larson & Donnan, supra, 120-24.
5.

In May of 1992, BHI initiated suit to quiet title to the T. rex SUE and

sought a preliminary injunction for possession of the T. rex SUE. See Black Hills
Inst. of Geological Research v. S.D. Sch. of Mines and Tech., 12 F.3d 737, 739-40
(8th Cir. 1993).
6.

On December 15, 1993, the United States Court of Appeals for the

Eighth Circuit ruled that BHI did not have any interest in SUE “[b]ecause
[Williams] did not seek the Secretary[ of Interior’s] approval.” The court held that
“Williams’ attempted sale to Black Hills is void and…the United States holds Sue
in trust for Williams pursuant to the trust patent.” Black Hills Inst. of Geological
Research v. S.D. Sch. of Mines and Tech., 12 F.3d 737, 742-43 (8th Cir. 1993)
(emphasis added).
7.

In the same ruling, the Eighth Circuit declared that “[b]ecause the

fossil was part of Williams’ trust land and he failed to secure approval for his

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attempted sale of the right to excavate it, …the United States’ seizure of the fossil
was a proper exercise of its trust status under the [General Allotment Act of
1887].” Id. at 743.
8.

On July 5, 1996, in a separate but related case, the Eighth Circuit

Court of Appeals for the United States affirmed a lower court decision that BHI
was not entitled to an equitable lien against Maurice Williams, based on BHI’s
lack of good faith when excavating the T. rex SUE. The Eighth Circuit quoted the
lower court as follows:
[The Institute] was willfully blind to the existing statutes
and regulations governing Indian trust land. Had [the
institute] spent the time necessary to research the law, the
only inescapable conclusion would have been that [the
Institute] had no right to the fossil without the
government’s permission.
Black Hills Inst. of Geological Research, Inc. v. Williams, 88 F.3d 614, 616 (8th
Cir. 1996) (quoting Mem. Op. at 8 (D.S.D. Aug. 11, 1995)).4
9.

“On October 4, 1997, [the Field Museum of Natural History in

Chicago, Illinois] purchased and acquired title to the original T.rex fossil SUE at a
Sotheby’s auction for Eight Million Three-Hundred Sixty-two Thousand and Five
Hundred dollars ($8,362,500.00) (including Sotheby’s Commission).” Affidavit of
Lance Grande (Aug. 18, 2011) (“Grande Aff.”) ¶ 2.5

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5

A copy of this decision is attached hereto as Exhibit D.
A copy of this affidavit is attached hereto as Exhibit E.
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10.

Maurice Williams did not “grant any casting or molding rights to the

SUE T. rex fossil to Peter Larson or the Black Hills Institute of Geological
Research, Inc. In fact, [he] did not grant casting or molding rights to anyone prior
to the sale of the fossil to The Field Museum.” Affidavit of Darlene Williams
(Aug. 29, 2011) (“Williams Aff.) ¶ 4.6
11.

“The Field Museum has never given permission to Peter Larson or the

Black Hills Institute of Geological Research, Inc. to make molds or casts of the
T.rex fossil SUE.” Grande Aff. ¶ 4.
12.

“The only entity or person to which The Field Museum has ever

granted such molding or casting rights is Research Casting International Ltd. in
Trenton Ontario.” Grande Aff. ¶ 4; see also Affidavit of Peter May Aff. (Aug. 31.
2011) (“May Aff.”) ¶¶ 3, 4.7
13.

On October 11, 2010, “Plaintiff[, acting as author, copyright claimant,

and organization with rights and permission,] filed an application to register its
copyright[, which was subsequently approved,] in the work entitled ‘SUE T. rex’[,
which was first published in June 1, 1992] with the United States Copyright
Office[.]” Pl.’s First Amended Compl. and Demand for Jury Trial, ¶¶ 69, 70
(March 9, 2011) (citing Copyright Application for SUE T. rex, Black Hills Institute

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A copy of this affidavit is attached hereto as Exhibit F. Darlene Williams is the widow of ranch
owner Maurice Williams. See Williams Aff. ¶ 1.
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A copy of this affidavit is attached hereto as Exhibit G.
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of Geological Research, Inc. (Oct. 11, 2010) attached thereto as ex. “J”). The
copyright registration for SUE T.rex subsequently issued.
14.

On March 9, 2011, BHI initiated an action for copyright infringement

against FPPI, alleging violations of the copyright laws of the United States in
connection with the “SUE T. rex.” See id. ¶¶ 68-85.
15.

It is standard practice among professional paleontologists to obtain

permission from the owner of the fossil before making a cast of it. One of the
reasons for this practice is to protect the original fossil from damage or destruction.
When a fossil owner grants permission to make a cast of the fossil, this granting of
permission is documented by a casting rights agreement such as the agreement
between the U.S. Army Corps of Engineers and Fort Peck Palenotology, Inc.
(“FPPI”) and the agreement between The Field Museum and Research Casting
International, Ltd. See May Aff., Exh. A. The casting rights agreement may be a
stand-alone agreement or part of a loan specimen agreement. Affidavit of Timothy
B. Rowe (Oct. 14, 2011) (“Rowe Aff.”) ¶ 5.
16.

BHI not only recognizes the industry standard of a written casting

agreement but also practices it, as evidenced by the signed Specimen Loan
Agreement with Dr. Keith Rigby8 (attached as Exhibit A to the Rowe Aff.), which
explicitly denied him permission to copy STAN T.rex. In direct conflict with its

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See n.7 below for further information on Dr. Rigby.
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own demonstrated practices, BHI did not obtain permission from Maurice
Williams to cast his fossil SUE T.rex. Id. ¶ 6.
17.

The Tyrannosaurus rex fossil specimen known as Peck’s Rex is the

property of the U.S. government, and is administered by the U.S. Army Corps of
Engineers. Affidavit of John Rabenberg (Oct. 13, 2011) (“Rabenberg Aff.”) ¶ 2.
18.

Beginning in 2001, FPPI entered into discussions with the Corps of

Engineers about the terms of the written agreement that would formalize the
relationship between FPPI and the Corps of Engineers, and would specifically
address the casting of replicas of Peck’s Rex, which was in FPPI’s possession. Id.
¶ 3.
19.

In June or July 2002, FPPI staff began molding and casting portions

of Peck’s Rex. Id. ¶ 4.
20.

In August or September 2002, a representative of the Corps of

Engineers instructed FPPI to suspend its molding and casting operations, because
the Corps of Engineers had not yet given FPPI formal permission to mold and cast
Peck’s Rex. FPPI promptly ceased all molding and casting operations. These facts
are reflected on page 1 of the FPPI Board Meeting Minutes for September 12,
2002, a true and correct copy of which is attached as Exhibit “1” to the Rabenberg
Aff. Id. ¶ 5.

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21.

In compliance with the instructions from the Corps of Engineers, FPPI

did not do any further molding or casting of Peck’s Rex for at least three more
months, until receiving permission from the Corps of Engineers to resume such
operations. The following FPPI Board Meeting Minutes reflect the fact that FPPI
had discontinued its molding and casting operations during this period: FPPI
Board Meeting Minutes for October 10, 2002 at 1 (a true and correct copy of
which is attached as Exhibit “2” to the Rabenberg Aff.); FPPI Board Meeting
Minutes for November 14, 2002 at 1 (a true and correct copy of which is attached
as Exhibit “3” to the Rabenberg Aff.); and FPPI Board Meeting Minutes for
December 12, 2002 at 1 (a true and correct copy of which is attached as Exhibit
“4” to the Rabenberg Aff.). Id. ¶ 6.
22.

Attached as Exhibit “5” to the Rabenberg Aff. is a true and correct

copy of the Cooperative Agreement between the U.S. Army Corps of Engineers
and Fort Peck Paleontology, Inc., which documented the terms under which FPPI
was granted permission to mold and cast Peck’s Rex. Id. ¶ 7.
Dated:

October 20, 2011
/s/ Antoinette M. Tease
Attorney for Defendant Fort Peck Paleontology, Inc.

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