The Strange and Terrible Saga of Kevin and the Dinosaur
The Rape of T. Rex
by Bob Newland
(written summer of 1992)
Government is a trust, and the officers of the government are trustees; and both the trust and the trustees are created for the benefit of the people. Henry Clay
At 7:30 a.m. on May 14, 1992, something happened which will forever alter the way every citizen of Hill City, South Dakota, old enough to assimilate it feels about government. For the school children who witnessed it, it may well become the defining moment in their lives. It was, in reality, just another day on which officers of the United States Government violated their trust. But on that spring morning it happened so brutally and so publicly that an entire town is still stunned. That morning, acting on the orders of acting U.S. Attorney for South Dakota Kevin Schieffer, 9 FBI agents, 4 National Park rangers, 2 agents from the Department of Interiors office of Inspector General, 1 Bureau of Indian Affairs agent, 1 South Dakota Highway Patrolman, 1 Pennington County Deputy Sheriff, and several paleontologists or other scientists (information from FBI agent Charles Draper) executed a search and seizure warrant, which had been signed the previous afternoon by U.S. District Court Judge Richard Battey of Rapid City.
IN THE MATTER OF THE INVESTIGATION OF THE REMOVAL OF FOSSILS FROM INDIAN LANDS...on the premises ... known as the Black Hills Institute of Geological Research, Inc. ... there is now being concealed certain property, namely,(1) all the fossil remains of one tyrannosaurus rex dinosaur skeleton (commonly referred to as Sue) ..., as well as other fossil specimens as further set forth in detail in Exhibit A and the affidavits in support of this application for a search warrant, which ... were taken from a ... site on the property of Maurice Williams, [legal description of site], which property is held in trust by the United States of America;(2) all the papers, diaries, notes, photographs, including slides, memoranda, tape recordings, videotapes, maps, butcher paper and samples or other records relating to the excavation of the tyrannosaurus rex (Sue) and the other ... specimens;(3) all other fossil remains taken from the above Maurice Williams excavation site, as identified in the notes, photographs ... or other records seized pursuant to paragraph 2, above, and;(4) all papers, diaries, notes, ... relating to a separate excavation site on land owned by the Cheyenne River Sioux Tribe, and held in trust by the United States described as [legal description] and any fossil specimens removed from the second excavation site.... and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the person or premises above- described and the grounds for application for issuance of the search warrant exist ...Exhibit A contained a list.1. Parts of duckbilled dinosaurs.2. An ostrich-like bird.3. A slightly disarticulated turtle skull.4. Crocodile bones.5. Parts of other tyrannosaurus dinosaurs.
The premises secured (FBI agent Draper: "We didn't know what we were gonna run into".), the search and seizure begun, Kevin Schieffer arrived from Rapid City (about 30 miles away) at about 10:30 a.m. As Pete Larson, one of the owners of BHIGR put it, "I knew we were in trouble when the [acting] U.S. Attorney arrived at the seizure wearing makeup".
Hill City is a logging town with a population of 550 located more or less in the center of the Black Hills of South Dakota. Its major annual celebration is a lumberjack festival known as Heart of the Hills Day. It boasts a great little restaurant, the Alpine Inn, which offers two meals a large filet and a small filet; a collection of M. L. Warne's mounted big game trophies collected around the world called "The Call of the Wild"; and the 1880's Train, a steam engine from the last century which offers rides for tourists. In addition, Hill City's main street, a three-block section of U.S. Highway 385, contains several stores bristling with souvenirs and t-shirts. The town is really alive only from Memorial Day through Labor Day the tourist season. The Black Hills Institute of Geological Research located itself in Hill City's vacant American Legion Hall and Hill City Auditorium, a WPA project constructed in the late thirties, in the fall of 1979.
On the morning of May 13 this year a group of elementary school children went to the Institute to present its owners with the proceeds of a bake sale $61.28 for the fund which had been started to build a new geological/paleontological museum whose centerpiece was to have been Sue, the largest and most complete Tyrannosaurus rex fossil ever found. The next morning found the place swarming with grim-faced men wearing blue jackets bearing the legend FBI in foot-tall yellow letters, along with a variety of other federal, state, and local agents.Shortly, several South Dakota National Guard troops, trucks, and forklifts arrived to begin loading and transporting the huge tonnage of specimens, much still encased in its sandstone tombs.
Pete and Neal Larson were raised near Mission, another small South Dakota town, this one surrounded by the Rosebud Sioux reservation in the south-central part of the state. Their parents, Neal and Gert, still operate the ranch Neal, Sr.'s father bought in 1925, with their brother John. Another brother, Mark, is a machinist in Bangor, Wisconsin. Their sister Jill is an elementary teacher in Mission. Neal, Jr., says that he and Pete were fascinated by rocks and especially fossils for as long as I can remember. We used to walk the river bottoms and search for them. A photo on an office wall at the Black Hills Institute shows the two boys standing in their yard amidst various pieces of junk and rocks, under a hand-lettered sign, Museum.
Graduating Todd County High School in 1970, Pete entered the geology program at the South Dakota School of Mines and Technology at Rapid City, graduating with a Bachelor of Science in 1974. Neal followed, graduating in 1973 from Todd County, and from SDSMT in 1977.In January of 1974, Pete Larson, along with James Honert, now a geologist with Shell Oil in Texas, started Black Hills Minerals, an earth science supply house which supplied fossils and geological specimens to colleges and universities for study and teaching aids. They located in a pink stucco building which had been the first home for the Reptile Gardens, perhaps the world's largest collection of live reptiles and a major tourist attraction in the Black Hills.Four years later, Pete and Neal incorporated the business as the Black Hills Institute of Geological Research. In 1979 they relocated in Hill City.
I first became aware of the existence of BHIGR on September 23, 1990, when the Rapid City Journal ran a piece on the discovery of Sue. South Dakota fossil hunters have discovered the largest and maybe the most complete Tyrannosaurus rex dinosaur skeleton ever found. "I've had a permanent smile on my face since August 12th ", Pete Larson said. Larson is the president of the [Black Hills] Institute [of Geological Research], a private company that sells fossils and reconstructed dinosaur skeletons to universities and museums worldwide. The Tyrannosaurus rex, however, is not for sale. "Never. Ever", said Larson's brother, Neal, who is vice-president of the Institute.
The Larsons and their partner, Bob Farrar, plan to make the Tyrannosaurus the cornerstone of a new museum in Hill City. Here's the plan. First, the Larsons and their eleven full-time employees will restore the bones and reconstruct them into a skeleton, a process that could take up to a year-and-a-half and 15,000 hours of work. In fact, Peter Larson says he is looking for talented people who don't mind long hours and low pay to help with that task. Then Larson hopes to take the Tyrannosaurus on tour, in order to pay for the restoration and maybe get a start on their dream the Black Hills Museum of Natural History. As independent Republican paleontologists, they reject the idea of government grants. Too much bureaucracy. They don't even like the idea of forming a non-profit corporation. "You lose too much control", Neal said.
"The story of Sue begins in 1979, when Pete and Neal Larson first heard of Ruth Mason, a nonagenarian who ranched (she died in 1990) near Faith, South Dakota, a prairie community 100 miles northeast of the Black Hills. Since she was seven years old, when she discovered a bed of ancient bones weathering out of a bluff a few miles from her folks' house. For eighty years she attempted vainly to interest researchers in her find. In the spring of '79, the Larsons met Ruth and were taken to the bones. Near the channel of the Moreau River, in a bluff cut by the river, was the graveyard of what appeared to be hundreds of dinosaurs. In a bed about eighteen inches thick, bones were found almost everywhere the Larsons probed with a digging knife." O. Richard Norton, American West, June 1989.
The Larsons are still working this find, which they called the Ruth Mason Quarry. The find contained the remains of at least two thousand beasts. There is only speculation as to the reason so many bones were in one place. The river system could have transported the bones a few at a time to a sandy coast at the edge of a receding Cretaceous sea. Or a great storm could have trapped and drowned a herd on a spit of land. (A preponderance of the fossils were of Emontosaurus annectens a duckbilled dinosaur which migrated in flocks. Various carnivores teeth, including that of T. rex, were also found at the site, which could simply mean that these beasts were scavenging the remains. "We're only guessing", said Pete.
In July, 1990, Maurice Williams, who had a ranch nearby, came by the quarry. He was fascinated by work, and offered to let the paleontologists search for fossils on his land. Pete told him he appreciated the offer and would do so at the earliest opportunity. On the morning of August 12, the team suffered a flat tire. Their spare was low and the pump was broken. Most of the crew decided to take the tires to Faith in another vehicle for repair. Susan Hendrickson, a Seattle archaeologist and amateur paleontologist who was working with BHIGR that summer, decided to take a hike through Williams' land instead.
She returned to the quarry several hours later finding the team back at work with three pieces of vertebrae. Pete thought immediately, Tyrannosaurus. The team saddled up and drove to the site she'd discovered, a 60-foot sandstone cliff jutting out of the prairie. At about eye level, a huge femur (thigh bone) protruded, along with several other bones.Pete immediately sought out Williams, who said, I've ridden by that place a hunnerd times. Never saw a thing. Larson purchased the rights to excavate the dinosaur, and the rights to the bones themselves, from Williams for $5000. Over the next 17 days, the team wore out four picks chipping away 29 feet of sandstone overburden. They slowly exposed, protected with plaster casts, and transported to the Institute in Hill City:
A complete pelvis ,
A nearly-complete torso,
Complete rear legs ,
The radius, ulna, and hand bones of the T. rex's small arms,
The first complete T. rex shoulder girdle ever found,
The first nearly complete tail ever found,
Possible stomach contents, and
A spectacular, five-foot-long, virtually complete skull, which contained an almost-complete set of dangerously serrated, dagger-like teeth.
The block of sandstone containing the skull weighed four-and-a-half tons. BHIGR estimates that Sue would have stood nearly 20 feet tall, and would have been 41 feet from nose to tip of tail. Prior to 1990, only seven Tyrannosaurus skeletons had been found more than 50% complete. All have come from the Hell Creek Formation, a layer of sedimentary silt and sandstone which covers a lot of Montana, Wyoming, the Dakotas and Alberta, Canada. As the geologists chipped away the sandstone, they found parts of at least three more Tyrannosauri. Larson said the varying sizes suggested that the group might have been a family.
Over the course of the next year and a half, as BHIGR's crew slowly stripped away the sandstone and placed a type of superglue on the bones to prevent their disintegration, thousands of visitors viewed the skeletal parts. Academicians from all over the world came. While Sue's bones were arrayed in various work areas away from the primary exhibits, anyone who asked was allowed to view her. We enjoyed explaining to both paleontologists and elementary school field trip groups how we were preparing the skeleton and what we were going to do with her. Her because we suspect it was a female, and because a woman named Susan found the fossil.
The Institute has an impressive museum already. Glass cases and pedestals fill a thirty-by-thirty room. Polished and garishly-colored ammonites (an ancient cuttlefish, a relative of the squid), turtles, shark teeth, and various several-million-year-old bones and skulls, along with printed background information, provide the mood for a nearly-mandatory personal reflection on our past. In addition, storage areas in the building contain banks of cabinets of shallow drawers, each containing from tens to hundreds of fossils of smaller forms of ancient life.
As Neal Larson showed me these in July, he paused at a drawer of ammonites. This is my specialty. "There are probably only two people in the world who know as much about ammonites as I do", he said without hubris. We sat, and as he handed me specimens to examine one at a time, he talked about this shelled cuttlefish with a reverence for the history they and the other thousands and thousands of fossils in the room revealed. He was taking a mental break from the stress caused by the brutality of the government of the nation to which he pledges allegiance. At times, as the reality of recent events reimposed itself, the interruption of the work he loves and the possible end of his dream, his voice would catch.
And as I pondered the actions of Mr. Schieffer in the light of having come to know these men and their work, trying to eke out some justification for those actions and failing, my own eyes occasionally moistened. We looked at hundreds of photos. Neal is 37, broad-shouldered, husky, and dark-haired running to quite a little gray. I noticed a close-up of him showing no gray and, attempting to lighten things a little, said with a grin, "Must have been taken a few years ago". "January", he replied flatly.
What Does It Mean?
When asked about the TV makeup, Kevin Schieffer replied, "I don't know. Must have been left over from an appearance at an interview". In fact, Schieffer had called a press conference in Rapid City to announce the apprehension of the elusive fossil, and had arrived at Hill City fully aware that television coverage was certain. Kevin Schieffer had been in his office, U.S. Attorney for South Dakota, for only a few weeks when he ordered the seizure of Sue. His appointment had been at the urging of U.S. Senator Larry Pressler of South Dakota, for whom Schieffer had been chief of staff.
He was a lawyer by training only, having never tried a case. Gary Colbath, a Rapid City attorney (and former assistant U.S. Attorney) who represented Susan Hendrickson (Sue's discoverer) in her deposition by Schieffer, said to a Rapid City Journal reporter, I've never seen anything so Mickey Mouse. Schieffer repeatedly extended and retracted offers of immunity in exchange for her testimony. It's unprecedented in my experience. I talked to Colbath and he told me, There are about 1400 practicing attorneys in South Dakota. (sardonically) Surely there was among them one who is qualified by experience and acumen to fill that office. For a United States Senator, Yale-educated, who has, incidentally, twice failed the South Dakota Bar examination, and who won't take it again because if he fails it a third time he can never be a lawyer in South Dakota, to pass over all the qualified attorneys who know and understand South Dakota and the law, in favor of a man who has no credentials (other than the debt owed him for services performed for Pressler), who had never been in a courtroom, is an insult to every lawyer in the state. More importantly, it's an insult to the citizens of South Dakota.
Colbath also said he felt that it was a mistake both tactically and on a reasoning level for anyone to paint both Schieffer and Judge Battey with the same brush. Even though Judge Battey has twice ruled in favor of Schieffer (in granting the original search and seizure warrant and, more recently, in ruling that the storage of Sue should remain out of the hands of BHIGR), and even though he (Colbath) personally disagreed with Battey in his interpretation of the law in this case, there was a world of difference between Battey and Schieffer. Battey, at least, he continued, was a competent lawyer. He was qualified for the job of federal judge. And, he said, he was confident that Battey would bend over backwards to assure his own record in the case would pass muster in the inevitable appeals which would be filed no matter what happened as this case unfolded.
On the other hand, I've talked to several lawyers whose judgment I trust (on most matters) who say that Battey, a Reagan appointee (through nomination by U.S. Senator Larry Pressler, R-SD) , is the worst I've ever seen (this phrase is common). All he wants to do is send people to jail. One particularly vocal lawyer said that, prior to his appointment to the federal bench, Judge Battey was practicing about half-time in Redfield, South Dakota, and politicking the other half. His most serious legal work was the one DWI per year he tried. From that background he went to one of the most powerful positions in the United States Government, federal judge, a position from which he virtually can't be removed. I laughingly suggested he'd have to be caught smoking crack in the courtroom. My source said, Nah, that wouldn't be enough.
Returning to the seizure of Sue, May 14, 15, and 16 ....As word got around Hill City about the assault, citizens gathered, angry. An attempt was made to organize logging truck operators to blockade the roads to prevent the government from removing the fossils, but cooler heads prevailed. Since, though, more than one person has told me, I wish we'd gone ahead with that. The loggers were ready. They're already pissed off at the government. It would have brought immediate massive national coverage. I think that's what we needed. My personal feeling is that the citizens of Hill City, feeling violated by the shameful show of force, were about that close (hold your thumb and forefinger an eighth of an inch apart) to being ready for armed conflict. Schoolchildren gathered around, linked hands and sang The Star Spangled Banner. They accosted the FBI agents and the National Guardsmen with cries of Shame! Shame! On the second and third days, the FBI chose not to wear their assault jackets with the huge yellow FBI on the backs. Terry Wentz, a BHIGR employee, told me that one of the FBI agents said, If any of these kids cause any problems, they'll be wrestled to the ground and arrested.
An interesting legal point here. Who ordered the participation by the National Guard? The Guard has two commanders-in-chief. One is the governor of the state in which it is organized. Governor George Mickelson says he was out-of-state at the time of the BHI raid. But, he says, he's mad as hell that the Guard was activated without his being notified. He said that only after being forced to respond, and that is virtually all he's said about the federal government's assault on a world-famous, highly-respected business in his state. That leaves the President of the United States, or the Secretary of Defense, who may federalize the troops and activate them in case of compelling national interest, i.e., war. SD National Guard Adjutant-General Harold Sykora says he was asked by the U.S. Attorney's office to detail troops to help transport some evidence from Hill City to Rapid City. He referred the U.S. Attorney to the Department of Defense to obtain authorization. DOD then contacted me and asked me to task some troops. I did so. The next day, the U.S. Attorney asked me to send thirty more troops (editor's note: it was getting ugly in Hill City, remember). I refused. Now that we look back at it ..., and see exactly how things were done, yes, it would have gone more smoothly if the governor's office and the U.S. Attorney's office and whoever else was running this ... would have been totally in the loop. My staff was told all of the appropriate agencies were in the loop. As it turns out, that obviously wasn't done.
Senator Tom Daschle (D-SD) wrote a letter to the U.S. Attorney General, William Barr, on June 1, in which he asked by whose authority the Guard was activated. He also asked whether the surprise raid and the use of the Guard were really necessary. A copy of this letter was sent to BHIGR. In a gesture of what I interpret as contempt for a U.S. Senator by the Attorney General of the United States, Barr forwarded Daschle's letter to Schieffer for response. Schieffer told Daschle (and U.S. Representative Tim Johnson, D-SD, in a similar letter) a series of lies.He said that the seizure was found to be reasonable in a court of law. Actually, it was only found reasonable by a judge who signed a search warrant based on information given him by Schieffer. The same judge has misquoted testimony from transcripts in his own court. In direct contradiction to that statement "reasonable in a court of law" the Eighth Circuit Court of Appeals had twice found the seizure to be unreasonable. It was only when Judge Battey found his own actions to have been reasonable that Schieffer's statement began to bear some resemblace to the truth, and he made it prior to that finding.
He said that the National Guard was used according to established procedure. That is simply untrue, although a great deal of effort has been put forth by other public servants who assisted in the Guard's involvement, to cover their own asses in their collaboration with Schieffer based on their faith in his word. He repeatedly said that he could not go into any specifics of the case, yet he has repeatedly made statements of opinion to the press as statements of fact, including allegations of violation of a law which has been twice declared unconstitutional. He said that scientists from the Smithsonian were involved. They had refused to be involved. He referred to five people from the scientific community who assisted in evaluating and packing the fossils as Dr. so-and-so, when they were not doctors. He refers to the South Dakota School of Mines as a professional caretaker. No caretaking is being done, by court order.
There is a federal statute barring the use of the National Guard as posse comitatus in criminal cases by anyone. The penalties are stiff. We suggest that Kevin Schieffer violated this law. Speaking of laws ....To-date (and this could have changed by the time you read this; things are currently moving fairly quickly) no charges have been filed in this case by the U.S. Attorney's office. BHIGR can only speculate as to what Schieffer might have in mind. However, Schieffer, in an editorial in the Rapid City Journal on May 23, made some statements. He referred to the Antiquities Act of 1906, which was enacted to preserve permanently priceless pieces of science, and to guarantee that they remain in the public domain for the advancement of science and education .... If objects of antiquity are removed from federal land without permission, then they are to be brought back into the public domain .... My primary obligation is to return to the public domain significant objects of antiquity .... I would be happy to see them in Hill City as long as the scientific and educational objectives of the law are served and there is no possibility of future commercial transactions or private restrictions.
The 1906 Antiquities Act provides for a fine of $500 and/or 90 days in jail for anyone who shall appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity, situated on lands owned or controlled by the Government of the United States, without the permission of the Secretary ... having jurisdiction ....Only two cases are known in which the feds preferred charges under this Act. In the first, U.S. v Diaz, the case involved Indian face masks, which were only five years old at the time. The federal court for the District of Montana convicted him. The Ninth Circuit Court of Appeals reversed the decision, stating the statute ... is fatally vague in violation of the due process clause of the Constitution. In the second, U.S. v Farish Jenkins, a Harvard paleontologist, the case involved fossils on federal land in Montana. His case was dismissed in federal court, citing the Diaz case, which clearly declared the law unconstitutional.
So why is Schieffer even mentioning the 1906 Antiquities Act, which does not even mention fossils to begin with, but was clearly designed to protect archaeological treasures, i.e. man- made objects of historical interest, and which was declared void because it does that so poorly? But, could it be that Mr. Schieffer simply got his laws mixed up (not an impossibility, given the stupidity he's exhibited to-date)? Could he have been referring to the Archaeological Resources Protection Act of 1974, written to replace the 1906 Act, and defining more clearly the items the government seeks to protect? Maybe. However, the ARPA of '74 clearly states that nonfossilized and fossilized paleontological materials shall not be considered under this act. Maybe another law? There are none. There are no laws governing the collection of fossils on federal land, other than national parks and monuments. No one claims Sue was buried on a park or monument.
But, was Sue even on Indian Land, as the search warrant suggests? According to the best information the Institute has, it was not, at least in the sense of being Federal Indian Land (reservation). Within the Sioux reservations in South Dakota, there are many pockets of private land. Such was the case with the land Maurice Williams purchased in the 1960's. Federal law allows Native Americans to place private land in trust with the federal government. The advantage to the owner is that he does not have to pay property tax. The disadvantage is .... There are no disadvantages! Williams trust deed says that his land is reserved for the sole use of Maurice Williams and his heirs. Period. In 1969, he placed it in trust for 25 years, meaning that it returns to the normal sense of ownership in 1994. Williams has, in fact, leased his land, already in trust, to oil companies for exploration. Had oil been taken, he, not the government, would have received the royalties. Oil is fossils. So, what's the deal? Did BHIGR somehow bilk Williams into selling a priceless fossil for only $5000.00. Williams seemed plenty happy with the money and the press. Until ....
Somewhere in Canada, there is a man named Gordon Walker, who owns a fossil egg. Pete Larson first became aware of him when he saw an ad in Lapidary Journal, offering said egg for sale for $3.5 million dollars. The ad claimed that said egg was a dinosaur egg and, in fact, contained a dinosaur embryo. Pete said he got a good laugh out of that deal.Then in February, 1991 (after Sue's discovery had made world-wide news), Pete received a phone call from a Randy Eugene, a reporter. When Pete asked for whom he reported and where he lived, Randy sidestepped. He did, however, ask some questions, which Pete answered. I always answer everybody's questions. I don't have anything to hide. The questions were about Sue; where was she found?; who owned the land?; how much did you pay for her?.Larson continued, Then he (Randy) started talking about this "Soul of the Phoenix". What the hell's that? I asked. He told me it was this egg I'd seen advertised, and that it was worth $5 million dollars, and would I like to buy it? I declined, saying no fossil on earth was worth $5 mil. And the conversation ended.
A short time later, I get another call, this time from a lawyer, who wouldn't give me his name or address, but who had the same voice as Randy Eugene, a distinctive voice. This lawyer suggested that I had committed slander of property in my comments to Eugene and he was gonna sue me. I told him, Have at it. I subsequently received several letters from Gordon Walker, who referred to me as the notorious fossil liar from South Dakota. I pitched 'em, after I and the rest of the crew at BHI got a good laugh. Larson says that from pictures and from Walker's information, he has concluded that the egg is a fossilized bird egg from the Badlands of South Dakota, worth maybe $50, $200 at the outside.
Larson says that then, based on information from other parties which have become involved in this imbroglio that Walker then contacted Maurice Williams and offered him $1,000,000 for Sue, if he could get her back. Williams asked his lawyer to get the fossil. Counsel then wrote Larson, stating that of course, you only paid for ingress and egress to Mr. Williams property, not for the dinosaur. I wrote back telling him that of course that wasn't true. Williams then went to the chairman of the Cheyenne River Sioux Tribe, Gregg Bourland, offering to sign over his rights to the dinosaur if the tribe would give him 50% of whatever they could get out of it. Bourland apparently accepted that offer, and the tribe has since become a party to a civil action seeking ownership of the fossil.
Schieffer had the National Guard transport the approximately ten tons of fossils, packed in plaster, to the South Dakota School of Mines and Technology, where they stored the booty in a machine shop. Boxes and boxes of BHI records were taken to the Federal Building in Rapid City, so the FBI could peruse them. Included among the records were files marked Legal Correspondence. Pat Duffy, chief among the Institute's lawyers, told BHI that it was highly unusual for such records to be seized in a raid. As a matter of courtesy, if not law, attorney-client communication is generally privileged even when such records are part of an overall package subject to seizure.
A couple of weeks after the seizure, Pete Larson and Pat Duffy went to the SDSMT storage building and simply walked in and checked out the conditions under which what Schieffer has termed priceless treasures were stored. They saw no guard, and were unchallenged in their entrance. We could have taken anything we wanted. Immediately after the raid, Duffy appealed to the Federal District Court of South Dakota for return of the fossils and records. Judge Battey rejected the appeal. Duffy then appealed to the federal Eighth Circuit Court of Appeals in St. Louis. The appeal did not address the question of ownership. Rather, it simply asked for the return of the material taken, for safekeeping at the Institute, until ownership could be settled. In late June, the Appeals Court released its opinion, in which it stated that the government had stored the relic under conditions that even its own experts describe as inadequate.
Moreover, the government has admitted that it does not need the 10 tons of bones for evidence in its criminal investigation. Based on these [and other facts presented in the appeal] 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 community from viewing and studying this rare find. Therefore, ... we remand to the district court with directions to hold a hearing at its earliest possible convenience to determine proper custodianship ... during the pendency of this case. The appeals court also said they found it rather strange that such dire steps were taken when a minor misdemeanor was all that was at stake.
Kevin Schieffer immediately appealed that finding and his appeal was returned unheard. That makes twice that appeals courts found in favor of the Institute. The hearing was held in front of Judge Battey beginning on Thursday, July 9, and ending Monday, July 13. Battey gave a written opinion immediately upon the end of testimony, in which he referred to testimony yet to be given at the time of his writing, which held for Schieffer, and in which he contradicted what every observer (not all of whom were automatically BHI sympathizers) of the trial with whom I have spoken said about the testimony, calling Schieffer's witnesses "more credible" than those for BHI. During the hearing, after court one day, Schieffer wandered into Murphy's, a bar next to the federal building where the clientele, especially during Friday happy hour, is preponderantly lawyers. He was hissed out of the place.
One witness for BHI was Don Wolberg, an officer of the Paleontological Society of the United States, and an employee of the New Mexico Bureau of Mines and Mineral Resources. In 1987, the National Museum of Wales, Cardiff, Wales, asked the NM Bureau of Mines to authenticate a duckbilled dinosaur fossil it was prepared to purchase from BHI. It sent Wolberg to BHI, where he authenticated (simply, Yes, it's a duckbilled dinosaur fossil) the skeleton, and then returned to New Mexico the same day. Wolberg told me that Cardiff paid NMBM for the plane fare, and sent Wolberg a $200 honorarium for his expert opinion. Wolberg turned that money over to NMBM. His testimony in the hearing was in corroboration of the character and integrity of the Institute and its officers, and in support of their contention that the conditions of storage were dangerous to the preservation of Sue. Schieffer's questioning of his credentials included many questions about his trip to South Dakota to authenticate the duckbill. By Thursday, July 16, three days after the end of the hearing, Kevin Schieffer had made three phone calls to the director of the New Mexico Bureau of Mines and Mineral Resources, Charles Chapin, telling him that he (Schieffer) didn't appreciate Wolberg's testimoney, that Wolberg had been totally discredited, that Wolberg had committed perjury and could be prosecuted. The director then told Wolberg's supervisor that he had discredited and embarrassed the Bureau of Mines and implied that he should consider resignation (Wolberg is tenured, so can't be fired except for certain gross violations).
Don Wolberg's wife, Patsy Reinard, is an attorney. Patsy told me she was "unhappy" (my understatement) with the slander, and that Kevin Schieffer may have stepped on the wrong snake this time. She plans to institute a civil action for slander, and suggests that Schieffer is also guilty of intimidation of a witness (Wolberg is almost certain to be called again in the appeal for custody of Sue pending final adjudication of ownership). Intimidation of a witness is a serious felony. Patsy Reinard continued, I can't fathom a man like Schieffer ever being appointed. For a young, inexperienced [acting]U.S. Attorney to go around committing crimes of this nature, and for the judge in the case to allow him to do it .... [her voice trailed off in lack of adequate words to describe the travesty]. Ms. Reinard also said that U.S. Attorney General William Barr is about to be deluged with phone calls from other prominent paleontologists and the New Mexico congressional delegation in vehement protest over this treatment of one of the world's foremost fossil experts by a trustee of the United States Government.
According to Wolberg, No matter how this turns out, my career has been damaged. Most of us in this community (scientific) just do our jobs. We chose this because we love it, and we don't want to deal with politics. Accusations of the sort of Mr. Schieffer's ... word gets around ... people tend to think where there's smoke ... Wolberg makes just under $38,000 a year. He has eight children. His eldest, a daughter, recently graduated from Annapolis. She's now on the Atlantic Fleet Admiral's staff. This can't help her. She has a clearance probably higher than Dan Quayle's. It will hurt her career, too. Pete Larson said of Schieffer's actions with regard to Don Wolberg, Dr. Wolberg's crime was to testify on behalf of a 65-million-year-old dinosaur. For doing this, Mr. Schieffer feels he must be punished, first by losing his job, then by whatever Schieffer can cook up. This harassment by an acting U.S. Attorney is reprehensible. I can not believe that this shameless and evil abuse of power will go unpunished by our legal system.
On Thursday, July 23, the Rapid City Journal carried a piece in which Schieffer said, with regard to the above allegations, "It's hogwash". It would have been irresponsible and unethical to do the kind of thing they're suggesting. He would not comment further. NMBM Director Chapin, in the same article, said, What went on between two people on the phone is none of the media's business. However, Wolberg's former supervisor, Frank Kottlowski, said Chapin had told him that he (Chapin) and Schieffer had discussed Wolberg's testimony. So it goes.
On Monday, July 20, Pat Duffy filed an appeal on the temporary custody finding to the eighth circuit court of appeals. What does it mean? Why? Nobody I've talked to understands it. I haven't bothered calling Schieffer. He refuses to talk to any reporters, according to newspaper and TV coverage, saying he can't comment on a pending case. Yet, he manages to release information at his pleasure. Speculation, however, abounds, most of it plausible. One thing is clear. The implications of this case range the spectrum. Witness intimidation by the [acting]U.S. Attorney. Slander of a respected scientist by the U.S. Attorney. Unreasonable (and if the raid and rape of the BHIGR was not unreasonable, then the 4th amendment to the Constitution has absolutely no meaning) search and seizure. Precedent-changing possibilities in private property transactions. Even the whole principle of free enterprise is threatened.
One of the principles which keeps coming up is that of private fossil collection and ownership and study as opposed to that of universities and state and federal agencies. For a long time, there has been a war in the paleontological world over the question of "just anybody" being allowed to pick up a bone and own it. It's been difficult for me to take that seriously the fact that some academicians think that Pete and Neal Larson are committing some heresy by finding, researching, preparing and selling fossils. That means of course, that if I find a fossil skeleton, even on land I own, and instead of reporting it immediately to a qualified, university-employed paleontologist, decide to excavate it and put it in my own collection, then I'm committing not only a heresy, but a crime against nature and knowledge. I, of course, would be guilty of bad judgment in doing what I just described. The work of paleontology is advanced by open study of nearly every fossil find. Yet, certain academicians think that if I find a shark's tooth on land which is 2000 miles from the nearest ocean at present (which I have done) then I should not be allowed to either keep it or sell it.
A fossil can be a microscopic grain of pollen frozen in prehistoric amber, or it can be the skeleton of the largest meat-eater ever to walk. No legal description can ever discriminate between what is "significant" and what is not. Yet, of course, lawyers, particularly those elected to office or, worse yet, appointed, think it their duty to attempt to do just such stupid tasks. The fact is that, in practice, nearly all fossils are given or sold to research institutes like BHIGR or to universities. Most citizens, being limited in knowledge of paleontology, are both smart enough and interested enough in the pursuit of knowledge of our, their, past, to do just that. Even those which go to private collections for the purpose of affirming the egos of those who are rich enough to buy them are first properly curated (who would be stupid enough to buy a pile of bones for hundreds of thousands of dollars just to watch them turn to dust), and they nearly always eventually come back into the public realm. The monetary transaction, meanwhile, has served to further the work of science from private, rather than public, funds.
The Larson brothers, according to several paleontologists with whom I've spoken, as well as in articles on paleontology, are credited with having a great deal to do with the current dinosaur craze. From 1960 to 1975 almost no one was actively searching for and collecting fossils. In the last fifteen years, Pete and Neal Larson have contributed as much to paleontological knowledge and volume of fossils as any other paleontological researchers in the world during the same period. Yet they have only once accepted public money. They applied for, and received, $1500 from the South Dakota Economic Development fund to help defray expenses incurred while displaying several skeletons and other fossils at a gem, mineral, and fossil show in Tucson in 1990. They have personally financed their work through the practice of buying the rights to search and buying the actual finds from private landowners, then selling some of the fruits of their labors, always to institutions which study the specimens and put them on public display. They haven't messed with any public lands, except in rare instances, because of the governmental obsession with red tape in obtaining the rights to do so.
A certain faction of paleontologists believe there is something nasty about this. It appears to me it's a combination of academic condescension (snottiness) combined with embarrassment over the fact that Pete and Neal, among others, have succeeded wildly while the academicians have been asleep. In the course of researching this piece, I've read a dozen articles in paleontological and mineral journals, as well as in less esoteric publications about projects all over the world in which Pete and Neal have been involved. A prospectus of sorts, prepared by BHIGR, lists 33 institutions (schools and museums), located on every continent except Antarctica and Australia (and the list is only partial) which have purchased specimens from BHIGR. In addition, it lists 39 instances in which BHI specimens have been utilized in research. These specimens were provided at no charge, again to Institutions all over the world. The packet also lists 24 published pieces by Pete (with, in some cases, co-authorship by others, mostly from BHI) which have appeared in journals all over the world.
Dr. R. T. Bakker (pronounced "bocker"), president of the Wyoming-Colorado Paleontological Society, said, in a letter to Kevin Schieffer (he refers to Sue, but what he says is true of all the work BHI has done since its inception), "Sue the tyrannosaur has been an open schoolhouse, teaching scholar and second-graders alike about nature, geology, evolution and science in general. From the very first day the specimen was unearthed, the Black Hills Institute has been extraordinarily open and generous, the skeleton has always been available for educators of all sorts. Professors from universities, newsmen from around the world and school groups from elementary grades have met Sue and gone away enriched. To pull the skeleton out of circulation is to close this wonderful schoolhouse to the public, and that's a tragedy".
Kevin Schieffer made public some conditions for return of Sue to the Institute. They were, simply, that: "The institute must guarantee that [the fossil] will be displayed permanently in a public museum and would not be sold or traded out of the country or into a private collection. So far I have received no guarantee of that." USA Today, 5/20,92. The fact is that in a series of newspaper pieces dating from the time of Sue's discovery to the present, exactly that condition was guaranteed by BHIGR. The guarantee was reiterated by BHI after the USA Today piece appeared. Schieffer hasn't returned the fossil. A variety of local and national journals carried several stories in which BHI announced its intention to open the Black Hills Museum of Natural History in Hill City, in which Sue would reside permanently.
Having shown himself to be a liar, Schieffer provided confirmation in the following interesting little exchange. BHIGR was suspicious that they would be raided prior to the event, although they had no inkling of the violence with which it would take place. Sue's skull had been scheduled to be sent to NASA in Alabama for a CAT-scan three days after she was seized. BHI notified NASA of their suspicion she would be seized. NASA contacted Schieffer's office to see if they could plan to go ahead with the testing, which involved the coordination of schedules a number of experts, not to mention the scheduling of the use of the machine itself. Over one-and- a-half years of negotiation and preparation had gone into these plans (according to a letter from National Geographic Magazine to Kevin Schieffer). Schieffer's office indicated to NASA on May 8 he would not interfere with the test, knowing full well he would do exactly that.
National Geographic Magazine wrote Schieffer on May 15 (while the seizure was in progress) to ask him to allow the test. He refused. The tyranny produced by absolute power, which this lying mental pipsqueak appears to have, is obvious. No amount of reasoning power can begin to justify the actions of this trustee of the power granted the United States Government by the very people he shames by his absolute contempt.
The crimes committed by the Justice Department in the course of its prosecution of a case in which no charges have been filed dwarf by comparison any possible crime committed inadvertently by BHI (and I am convinced no crime was committed by BHI, not even a misdemeanor). This travesty exhibits elements of almost everything that is wrong with the federal government. According to the Eighth Circuit Court of Appeals, the charges contemplated by Kevin Schieffer are misdemeanors, punishable by at most a $500 fine and/or thirty days in jail. Yet, according to an FBI agent, whom BHIGR preparator and curator Terry Wentz asked for an estimate of the cost of the search and seizure, that part of the operation cost "about a million".
Think about it. If you or I were a federal prosecutor and someone had alleged to one of us that a respected business had committed a minor misdemeanor (or a minor felony, for that matter) in which neither property nor another human had been injured, would you send an army, and spend a million dollars of taxpayer money, in a SWAT-style attack on that business? Or would you get in your car and drive the thirty miles and talk to the folks and say to them, "There's been an allegation that you folks don't really own this dinosaur, or at least an allegation that you obtained it under some 'irregular' circumstance. I'm asking you, as a federal trustee, not to sell it or destroy it. Would you accommodate me until we get this straightened out? Or perhaps get the judge to sign an injunction to that very effect and deliver it to them, with apologies if any mistakes have been made or inconvenience caused as a result of possible mistakes?
Kevin Schieffer, however, apparently drunk with power, brought as much force to bear, from every possible branch of the federal and state government, as he possibly could muster. And took the most spectacular fossil ever found and placed it into storage under conditions which everyone involved says are "inadequate". And even he says he doesn't need the fossil as evidence. Yet, Sue is in crates in a steamroom at the South Dakota School of Mines and Technology, stored near a variety of corrosive chemicals, in a room where vehicles are parked leaking oil on the floor. Don Wolberg said that when he inspected the storage conditions in preparation for his testimony, someone had just dropped an air conditioner in a dumpster outside the shed. Freon was escaping. I could hear the hiss as I was looking at the crates. While freon is not (as far as I know) dangerous to Sue, it's an acknowledged environmental hazard. So much for SDSMT's care about things.
If your car were parked outside a 7/11 and a robber dashed from the store and placed his hands on the hood of your car on his way by, the cops would want to dust it for prints, right? Then they'd give it back, right? If Kevin Schieffer were in charge of the case, he'd impound your car and store it in a quarry under the rockcrusher while they searched for the bandit. He'd also be looking to charge you with aiding and abetting. In this case, the federal government, under the guidance of a package of blind ambition disguised as a human being, has simply taken what it wanted, with little pretense of anything else except the attitude of 'We can do it, so we're gonna'.
It's an acknowledged fact that once a fossil is exposed to the elements, as Sue has been, it must be curated (a fancy word for "taken care of"). The bones are in a constant state of disintegration. The work of fossil curation involves stopping that process. In a process which BHIGR has developed, it involves painstakingly cleaning the rock away from the bone and supergluing (in effect) the bone so it does not fall apart.
I didn't know anyone at BHIGR prior to May 22, when I decided that something wasn't right about what I'd been reading. What I found was a business operated for profit (which had finally started turning a profit after eighteen years as a result of hard work, sacrifice, devotion to provision of a service, and plain ole good sense), which was in the process of being destroyed by a stupid, lying, ambitious zealot on the public dole. It's a tribute to Pete and Neal Larson's and Bob Farrar's knowledge, work and guidance that BHI has, so far, been able to foot the approximately $60,000 in legal fees and $75,000 in Institute overhead since May 14. Pete says, "Now we've gotta start borrowing. Our business is at a standstill. Word of this has gotten all over the world. Our customers have been told there's smoke here. They don't know if there's fire or not, but they aren't taking a chance that what they might buy from us could be tainted by something illegal. I can't blame them much. They simply can't believe that a federal attorney would go to this much trouble simply out of malice. They can't believe our system of checks and balances would allow that to happen. But the money this case has cost us so far represents, along with a little equity in our property here, the entire fruit of my and my brother's life's work, not to mention the work of all the great people who've helped us along the way. If we don't get Sue back, this business is done. Our credibility in the world in which we do business will be gone. All to feed the ego of one underqualified servant of the public trust.
The Black Hills Institute of Geological Research welcomes your visit. You'll enjoy the exhibits the government so graciously allowed them to keep. Anyone there, all of whom I've found to be extremely knowledgable and friendly, will be happy to answer your questions about the research they've enthusiastically done for twenty years, or for that matter, the legal knowledge they've been forced to gain during the last two-and-half months. Meanwhile, Sue crumbles in storage.