County appeals T. rex lawsuit ruling
Posted: Monday, March 17, 2008
SIOUX FALLS (AP) -- Harding County is appealing a federal judge's ruling that a lease giving legal title of Tinker the teenage T-rex to the fossil hunters who discovered it is valid.
U.S. District Judge Richard Battey last month ruled that the paleo-prospectors did not engage in fraud or trespass and Harding County must abide by the November 2000 lease it tried to rescind.
The county has appealed Battey's ruling to the 8th U.S. Circuit Court of Appeals, which will be getting the 3.5-year-old court case for the second time.
Ken Barker, a Belle Fourche attorney representing Harding County, said last month that the appeals court in its earlier ruling covered only the narrow issue of whether the county abided by statutory procedure, and this appeal would be on the basis of all of the issues.
The 65-million-year-old fossil was unearthed from northwest South Dakota in 1998, but Harding County filed a lawsuit in August 2004 alleging that Ron Frithiof, of Austin, Texas, Kim Hollrah of Iowa and Melody Harrell of Texas wrongfully and illegally removed the skeletal remains from county property.
The lease stipulates that legal title to the fossil specimen remains with the lessee, "whether or not removed from the property." It promises that the county will receive 10 percent of the actual selling price of any fossils collected from county property.
Battey wrote in his summary judgment last month that the county "knowingly entered into this bargain and now must live with the consequences of its actions."
According to the lawsuit, which accused the fossil hunters of engaging in fraud, trespass and a civil conspiracy, Harding County found out about Tinker's discovery in May 2003 and sent notice to rescind the lease.
In June 2006 Battey ruled the lease invalid because it did not follow South Dakota law, but he did not rule at the time on the issues of fraud, mistake, rescission and conversion.
Last April, a three-judge panel of the 8th U.S. Circuit Court of Appeals court reversed Battey's lease ruling, saying the county failed to present evidence of the lease's fair market value "at the time it was entered, without relying upon events which occurred subsequently."
One such event was an $8.5 million offer for the dinosaur remains by the Children's Museum of Indianapolis, which the appeals court ruled was irrelevant because it came in after the lease date.
Battey in last month's ruling noted that Harding County was knowledgeable about fossil collecting leases, and the judge described the attention given to the transaction by the state's attorney as "perfunctory." He also said that the county can't claim it was mistaken about the prior discovery of the fossil.
Tinker, excavated north of Belle Fourche in the summer of 1998, was thought to be the first nearly complete skeleton of a juvenile Tyrannosaurus rex ever found.
Dinosaur experts determined the specimen was young based on its unfused backbones and gangly appearance, particularly in the shin and ankle.
But the skeleton's large jaws and massive bone-crushing teeth suggested it ate an adult diet, even though it didn't appear strong enough to wrestle large prey to the ground. Scientists surmised that perhaps one of its parents hunted the meals, and the juvenile T-rex showed up later to munch.
Tinker might one day find fame and fortune, but for now it remains in storage in Pennsylvania under the jurisdiction of a federal bankruptcy court after the man hired to restore the fossils filed for Chapter 7 bankruptcy protection.
U.S. District Judge Richard Battey last month ruled that the paleo-prospectors did not engage in fraud or trespass and Harding County must abide by the November 2000 lease it tried to rescind.
The county has appealed Battey's ruling to the 8th U.S. Circuit Court of Appeals, which will be getting the 3.5-year-old court case for the second time.
Ken Barker, a Belle Fourche attorney representing Harding County, said last month that the appeals court in its earlier ruling covered only the narrow issue of whether the county abided by statutory procedure, and this appeal would be on the basis of all of the issues.
The 65-million-year-old fossil was unearthed from northwest South Dakota in 1998, but Harding County filed a lawsuit in August 2004 alleging that Ron Frithiof, of Austin, Texas, Kim Hollrah of Iowa and Melody Harrell of Texas wrongfully and illegally removed the skeletal remains from county property.
The lease stipulates that legal title to the fossil specimen remains with the lessee, "whether or not removed from the property." It promises that the county will receive 10 percent of the actual selling price of any fossils collected from county property.
Battey wrote in his summary judgment last month that the county "knowingly entered into this bargain and now must live with the consequences of its actions."
According to the lawsuit, which accused the fossil hunters of engaging in fraud, trespass and a civil conspiracy, Harding County found out about Tinker's discovery in May 2003 and sent notice to rescind the lease.
In June 2006 Battey ruled the lease invalid because it did not follow South Dakota law, but he did not rule at the time on the issues of fraud, mistake, rescission and conversion.
Last April, a three-judge panel of the 8th U.S. Circuit Court of Appeals court reversed Battey's lease ruling, saying the county failed to present evidence of the lease's fair market value "at the time it was entered, without relying upon events which occurred subsequently."
One such event was an $8.5 million offer for the dinosaur remains by the Children's Museum of Indianapolis, which the appeals court ruled was irrelevant because it came in after the lease date.
Battey in last month's ruling noted that Harding County was knowledgeable about fossil collecting leases, and the judge described the attention given to the transaction by the state's attorney as "perfunctory." He also said that the county can't claim it was mistaken about the prior discovery of the fossil.
Tinker, excavated north of Belle Fourche in the summer of 1998, was thought to be the first nearly complete skeleton of a juvenile Tyrannosaurus rex ever found.
Dinosaur experts determined the specimen was young based on its unfused backbones and gangly appearance, particularly in the shin and ankle.
But the skeleton's large jaws and massive bone-crushing teeth suggested it ate an adult diet, even though it didn't appear strong enough to wrestle large prey to the ground. Scientists surmised that perhaps one of its parents hunted the meals, and the juvenile T-rex showed up later to munch.
Tinker might one day find fame and fortune, but for now it remains in storage in Pennsylvania under the jurisdiction of a federal bankruptcy court after the man hired to restore the fossils filed for Chapter 7 bankruptcy protection.
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