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, ).

1142TK
Time of Request: Friday, April 15, 2011
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TEASE, ANTOINETTE
ROCKY MOUNTAIN TECHNOLOGY GROUP, INC
207 N BROADWAY STE 509
BILLINGS, MT 59101-1951

Page 1

7 of 8 DOCUMENTS
Black Hills Institute of Geological Research; and Black Hills Museum of Natural
History Foundation, Inc., a non-profit corporation, Appellants, v. United States
Department of Justice; Manual Lujan, Jr., Secretary of the Department of Interior;
Cheyenne River Sioux Tribe; and South Dakota School of Mines and Technology,
Appellees.
No. 92-2252SD
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
967 F.2d 1237; 1992 U.S. App. LEXIS 14694
June 11, 1992, Submitted
June 26, 1992, Filed
SUBSEQUENT HISTORY: Rehearing Denied July 8,
1992, Reported at 1992 U.S. App. LEXIS 15582.
Certiorari Denied October 3, 1994, Reported at: 1994
U.S. LEXIS 5458.
PRIOR HISTORY:
[**1] Appeal from the United
States District Court for the District of South Dakota.
Honorable Richard H. Battey, Judge.
DISPOSITION: Remanded

COUNSEL: Counsel who presented argument on behalf
of the appellant were Patrick Duffy and Mark F. Marshall
of Rapid City, South Dakota.
Counsel who presented argument on behalf of the
appellee were Timothy W. Joranko of Eagle Butte, South
Dakota, and Robert A. Mandel of Rapid City, South
Dakota. Gene N. Lebrun of Rapid City, South Dakota,
appeared on the brief.
JUDGES: Before JOHN R. GIBSON, MAGILL, and
BEAM, Circuit Judges.
OPINION BY: MAGILL
OPINION

[*1238] MAGILL, Circuit Judge.
This case concerns the care and custodianship of a 65
million-year-old pile of bones named Sue. Ever since
researchers uncovered the mammoth remains of a
Tyrannosaurus rex in western South Dakota in August,
1990, the ten tons of bones have sparked a keen
ownership battle. Federal agents seized the bones on
May 14, 1992, on orders of the United States Attorney for
the District of South Dakota as part of an investigation
into possible violations of the Antiquities Act. 16 U.S.C.
§ 433 (1988).
The ownership of these bones is not before this
court. 1 Rather, appellants sought a preliminary
injunction requiring the federal government [**2] to
return the fossil to them for safekeeping until the
ownership question is answered. The motion was based
on a claim that the fossil is being irreparably damaged in
the government's hands because of a lack of expertise in
handling the archaeological exhibit.
1 Litigation is ongoing as to the rightful owner
of Sue. The combatants include the federal
government, the Cheyenne River Sioux Tribe, and
the Black Hills Museum of Natural History
Foundation, Inc.

Page 2
967 F.2d 1237, *1238; 1992 U.S. App. LEXIS 14694, **2

The district court rejected the motion without
addressing the allegations claiming damage to the fossil.
The district court framed the question merely as an
attempt to regain evidence seized in a criminal
investigation. "Stripped of needless verbiage, plaintiffs
seek in this civil matter the return of evidence lawfully
seized pursuant to the rules of criminal law." Black Hills
Institute v. United States, Civ. 92-5070, slip op. at 2
(D.S.D. May 28, 1992).
The district court's denial of the preliminary
injunction is on appeal to this court in a separate [**3]
action. Briefing has been expedited by order of this
court. Appellants, meanwhile, have moved under 8th
Circuit R. 8A for an order granting custody of the bones
to their control pending the appeal of the preliminary
injunction. Appellants assert extraordinary relief is
required to prevent further damage to this rare
paleontological find. For the following reasons, we
remand this case to the district court with orders to hold a
hearing at the court's earliest possible convenience to
determine an appropriate custodian for the dinosaur
bones, giving full consideration to the strong public
interest in preservation of the fossil.
I.
During a break from a fossil excavation at another
site, Sue Hendrickson 2 discovered dinosaur bones on
Maurice Williams' [*1239] ranch. Williams is an Indian,
and the land where the fossil was discovered was held in
trust by the United States for the sole benefit of Williams.
The land is within the boundaries of the Cheyenne River
Sioux Indian Reservation. Williams sold the rights to
excavate the fossil to the Black Hills Institute of
Geological Research.
2
The fossil has been named Sue after its
discoverer.
[**4] For 17 days, the Institute excavated the fossil,
which is the largest and most complete Tyrannosaurus
rex skeleton known to man. The Institute moved the
fossil to Hill City, South Dakota, for public display and
research. 3 Federal officers, upon order of the United
States Attorney for South Dakota, seized the fossil on
May 14, 1992. The seizure was based on an alleged
violation of the Antiquities Act, which bans the removal
of antiquities from federal land. 4
3 After excavation, the Institute transferred the

rights to the fossil to the Black Hills Museum of
Natural History Foundation, Inc.
4 Under the Antiquities Act, the removal of any
object of antiquity from federal land is punishable
by a $ 500 fine and/or 90 days in jail. 16 U.S.C. §
433 (1988).
Appellants have submitted affidavits to the district
court and to this court from experts who have charged
that the government's storage of the fossil in a machine
shop at the South Dakota School of Mines and
Technology is causing irreparable damage to [**5] the
specimen. Therefore, extraordinary relief is sought.
II.
As an initial matter, we must determine whether this
court has jurisdiction to hear this claim for injunctive
relief. Appellants did not seek return of the fossil under
Fed. R. Crim. Pro. 41(e). Appellants contended a motion
under Rule 41(e) possibly could have delayed return of
the fossil until the United States Attorney made
reasonable efforts at completing the criminal prosecution.
Instead, appellants ask this court to exercise its equitable
powers to determine custody of the fossil during the
pendency of the litigation.
Rule 41(e) is the typical instrument to seek the return
of seized property after an indictment has been issued.
However, a motion prior to the filing of criminal charges
is more properly considered a suit in equity rather than
one under the Rules of Criminal Procedure. Matter of
Search of 4801 Fyler Avenue, 879 F.2d 385, 387 (8th Cir.
1989), cert. denied, 494 U.S. 1026, 110 S. Ct. 1470, 108
L. Ed. 2d 608 (1990). Federal courts have recognized an
independent cause of action for return of property based
on the general equitable jurisdiction of the federal courts.
Id.; United States v. Premises Known as 608 Taylor
Avenue, 584 F.2d 1297 (3d Cir. 1978); [**6] Mr. Lucky
Messenger Service Inc. v. United States, 587 F.2d 15,
16-17 (7th Cir. 1978); Hunsucker v. Phinney, 497 F.2d
29, 32 (5th Cir. 1974), cert. denied, 420 U.S. 927, 43 L.
Ed. 2d 397, 95 S. Ct. 1124 (1975). This remedy should be
exercised cautiously and subject to general equitable
principles. Matter of Search, 879 F.2d at 389; Mr. Lucky
Messenger, 587 F.2d at 17; Hunsucker, 497 F.2d at 32.
Among the factors courts consider in granting this
"anomalous jurisdiction" is whether the action involved a
callous disregard for constitutional rights. Matter of
Search, 879 F.2d at 387; Mr. Lucky Messenger, 587 F.2d

Page 3
967 F.2d 1237, *1239; 1992 U.S. App. LEXIS 14694, **6

at 17. Just as in Mr. Lucky Messenger the legality of the
seizure has not been challenged for the purposes of this
motion for injunction. Moreover, as in Mr. Lucky
Messenger, appellants do not seek exclusion of the fossils
from evidence. Therefore, this court looks not to the
legality of the seizure, but the reasonableness of it. Mr.
Lucky Messenger, 587 F.2d at 17.
The federal government enlisted dozens of Federal
[**7] Bureau of Investigation agents, Park Rangers, and
members of the South Dakota National Guard in an early
morning raid to seize l0 tons of dinosaur bones. The
rationale for the seizure of this priceless, archaeological
treasure was based on an investigation into criminal
charges that could result in, at most, 90 days in jail and a
$ 500 fine. The seizure came nearly two years after the
bones were found and excavated under the glare [*1240]
of worldwide publicity. The federal government has
stored this irreplaceable relic under circumstances that
even its own experts describe as inadequate. Moreover,
the government has admitted it does not need the 10 tons
of bones for evidence in its criminal investigation.
Appellants, for their part, have agreed to stipulate that the
bones are a 65-million-year-old skeleton of a
Tyrannosaurus rex found on the property the government
claims as its own. Appellants have also agreed to provide
documentation and access to the relic for any criminal
investigation. Based on these facts, we find the
government's rationale for the seizure inadequate. The
seizure not only keeps appellants from accessing the
fossil, but deprives the public and the scientific [**8]
community from viewing and studying this rare find. In
fact, a test on the fossil skull to be conducted by the
National Aeronautics and Space Administration was
cancelled because of the seizure. Therefore, this factor
militates strongly in favor of equitable relief.
Other factors considered by courts include whether
the party seeking return has an individual interest in and
need for the property, whether the party has an adequate
remedy at law, and whether the property would be
irreparably damaged by a failure to return. Matter of
Search, 879 F.2d at 387; Mr. Lucky Messenger, 587 F.2d
at 17. The first two factors would support an order
granting equitable relief. Appellants clearly have an
interest in preserving the fossil and studying it.
Moreover, appellants have made the fossil available to
the public and scientific community for display and
research. Secondly, appellants lack an adequate remedy
at law. If the contentions of appellants' experts are true,

the fossil continues to suffer damage as the legal
imbroglio surrounding it untangles. The final factor
gives us pause because this court is in no position to
make a determination [**9] whether the fossil is being
irreparably damaged in its present care. Nevertheless,
appellants clearly have made at least a prima facie
showing that this damage is probable and remedial steps
are necessary. Based on these factors and due to the
extraordinary nature of this case, we find that the court's
equitable jurisdiction is properly invoked. 5
5 Whether federal courts have jurisdiction over
the tribe, however, is problematic. Indian Tribes
are separate sovereigns and enjoy absolute
immunity from suit unless the tribe or Congress
grants the right to file suit in federal court against
the tribe. Santa Clara Pueblo v. Martinez, 436
U.S. 49, 56, 56 L. Ed. 2d 106, 98 S. Ct. 1670
(1978). Therefore, since the issue of sovereign
immunity is jurisdictional, Ramey Construction
Co. v. Apache Tribe of Mescalero Reservation,
673 F.2d 315, 318 (10th Cir. 1982), we direct the
district court on remand to determine whether the
tribe or Congress has expressly waived Immunity
from jurisdiction, or whether the tribe must be
dismissed from this action.
[**10] The district court found that return of the
fossils would jeopardize a criminal investigation. As
appellants admit, if this were a run-of-the-mill case or if
appellants were seeking to suppress evidence, the balance
of the equities probably would drown them. But despite
the government's contention, this is not a run- of-the-mill
case.
The Foundation does not dispute for purposes of this
motion that the government legally seized the bones as
evidence in a criminal case. While no criminal charges
have been filed, the government may retain seized goods
for a reasonable time while the investigation and
prosecution-proceed. 608 Taylor Avenue, 584 F.2d at
1299. But when the owner of seized property seeks
injunctive relief for the return of property while the case
remains in the investigative stage (i.e. before criminal
charges are brought), the district court must also balance
the government's interest in retaining the property against
the owner's right to get it back. Id. at 1304. Until
criminal charges are brought, the property owner is to be
considered an innocent bystander. Id. at 1301. When the
government's interest [**11] in retaining the property is

Page 4
967 F.2d 1237, *1240; 1992 U.S. App. LEXIS 14694, **11

merely to keep it as evidence, the court "should consider
whether this purpose would be equally well served by the
alternatives to holding the (evidence) itself." Id. at 1304.
For instance, if a robber runs from a bank with stolen
money and stumbles into a car, the government may lift
fingerprints from the car, photograph [*1241] it, or
otherwise preserve evidence. But they may not in all
cases insist on holding the car itself as evidence to be
presented to the jury. Id. at 1303. In this case, the interest
in returning the property is even more compelling. Not
only appellants, but the public and the scientific
community, would benefit from removing the fossil from
its present location in a machine shop at the South Dakota
School of Mines and Technology to a location where the
preservation of the fossil could be assured.
The government does not need to retain as evidence
the fossil which the government itself described as
"priceless" in order to preserve evidence in a petty
misdemeanor criminal prosecution. The presence of the
evidence is conclusive and well-documented. No one
would seriously suspect that the Foundation [**12]
intends to destroy the fossil. But even if the fossil was
lost or destroyed, it would have no impact on any
criminal investigation. The government may take
whatever steps necessary to establish proof of the
evidence before returning it. Moreover, the district court
could impose stringent conditions on the care and
preservation of the fossil, including the requirement that
it be available as evidence in the criminal trial.
Despite our conclusion that the government does not
need to retain the fossil as evidence in a criminal
investigation, we are unable to determine whether it is
appropriate to return the fossil to appellants for
safekeeping. Therefore, in light of the emergency nature
of this case, we remand to the district court with
directions to hold a hearing at its earliest possible
convenience to determine proper custodianship of the

fossil during the pendency of this case. 6 The court may
consider such evidence as it deems appropriate to
determine the proper conditions and place for storage and
custody of the fossil. If the parties could come to a
common understanding on this issue, the court as well as
the public at large would be well served. In any event,
resolution [**13] of this custodianship issue should
proceed forthwith to reduce damage to the fossil. The
district court may also order steps requested by the
government to document and preserve evidence for any
criminal prosecution. Finally, the district court may
determine a method of allocating costs for any
transportation or care required by its order.
6 This order complies with the procedure used
by courts in caring for the wreckage of Spanish
galleons discovered by divers off America's coast.
Since moving the recovered wreckage during the
ownership litigation was dangerous and difficult,
the district court appointed the finders custodian
of the wreckage until the case was resolved.
Treasure Salvors, Inc. v. Unidentified Wrecked
and Abandoned Sailing Vessel, 569 F.2d 330, 335
n. 5. (5th Cir. 1978); Subaqueous Exploration &
Archaeology Ltd. v. Unidentified Wrecked and
Abandoned Vessel, 577 F. Supp. 597, 600 (D. Md.
1983), aff'd without opinion, 765 F.2d 139 (4th
Cir. 1985).
[**14] III.
We remand to the district court to hold a hearing at
its earliest possible convenience to determine the proper
temporary custodian for the dinosaur bones pending final
disposition on the main action to determine ownership.
The district court may also take any steps necessary to
preserve evidence in any criminal prosecution stemming
from the find and may allocate costs associated with any
transportation or storage found necessary.

1142TK
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Time of Request: Friday, April 15, 2011

15:57:23 EST

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Send To:

TEASE, ANTOINETTE
ROCKY MOUNTAIN TECHNOLOGY GROUP, INC
207 N BROADWAY STE 509
BILLINGS, MT 59101-1951