Two fossilized dinosaur skeletons found on a Montana ranch in 2006 are billed as the Montana Dueling Dinosaurs. Photo: Seth Wenig/AP.

 

This is possibly the best-ever start to a judicial opinion. Honestly, I don’t see how it could be improved:

“Once upon a time, in a place now known as Montana, dinosaurs roamed the land. On a fateful day, some 66 million years ago, two such creatures, a 22-foot-long theropod and a 28-foot-long ceratopsian, engaged in mortal combat. While history has not recorded the circumstances surrounding this encounter, the remnants of these Cretaceous species, interlocked in combat, became entombed under a pile of sandstone. That was then . . . this is now.”

So wrote U.S. District Judge Eduardo Robreno of the Eastern District of Pennsylvania, sitting by designation on a Ninth Circuit panel, in an opinion issued Tuesday.

I’m pretty sure that for a judge, this is one of those cases that makes up for slogging through disputes over state law principles of insurance contract interpretation or whether an ORAP lien falls within the scope of the code’s tolling provision.

After all, how often do you get to decide an issue of first impression involving dinosaurs?

On one side of the fight are Lige and Mary Ann Murray, who own a Montana ranch where dinosaur fossils including the pair known as the “dueling dinosaurs” and a complete T-Rex skeleton were found.

The Murrays, who are represented by Crist, Krogh & Nord, bought the ranch in 2005 (a year before the fossil discoveries) from Jerry and Robert Severson.

But there’s a catch. While the Murrays own the surface estate and one-third of the mineral estate, the Seversons expressly retained the remaining two-thirds of the ranch’s mineral rights.

The question before the court: Are dinosaur fossils “minerals”?

If they are, the Seversons, who are represented by Eric Miller, a Perkins Coie partner whose nomination to the Ninth Circuit bench is pending, own two-thirds of them—and they’re worth millions. If not, the whole collection belongs to the Murrays.

It’s a seemingly straightforward query, but in the eyes of the law, “minerals” is an ambiguous term.

No one disputes that the fossils in a scientific sense are minerals—they’re made of hydroxylapatite and/or francolite, depending on which expert you credit.

But are they minerals under the terms of the contract between the Murrays and the Seversons, which covers “all right title and interest in and to all of the oil, gas, hydrocarbons, and minerals in, on and under, and that may be produced from the [ranch]”?

U.S. District Judge Susan Watters in Montana sided with the Murrays, concluding that fossils are not minerals.

“The fossils’ properties are not what make them valuable,” Watters wrote. “Fossils are not subject to further refinement before becoming economically exploitable. Instead, the fossils are valuable because of their very existence. Dinosaur bones are not economically valuable to be processed into fuel or materials or manufactured into jewelry. Further, dinosaur fossils are not mined in the traditional sense, but rather discovered by happenstance.”

But the Ninth Circuit panel, which also included judges Milan Smith, Jr. and Mary Murguia, had other ideas.

The fossils are in fact being used for economic or commercial purposes, wrote Robreno, who was joined by Smith. “[T]hey were sold (or offered for sale) for millions of dollars and subsequently displayed in a museum that charges admission to view them.”

He continued, “Although it could be argued that dinosaur fossils are unlike oil, gas, coal, and other substances traditionally thought of as minerals because they are not used as fuel, neither are many of the other substances specifically listed in the Webster’s definition, such as salt, sand, and gravel. In addition, as the Seversons point out, oil, gas, and coal all derive from the remains of plants and animals, just like dinosaur fossils, and should not be treated any differently because they are valuable for a different reason.”

Also, the majority cites an older edition of Black’s Law Dictionary that “defines a mineral as including ‘all fossil bodies or matters dug out of mines or quarries.’”

“Given the inconsistencies in dictionary definitions of ‘minerals,’ and recognizing that at least one of the definitions explicitly includes fossils as minerals, we disagree with the district court’s conclusion that the word “minerals” in the deed did not encompass dinosaur fossils,” the majority found.

In her dissent, Murguia argued that fossils do not fall under the “ordinary and natural meaning” of mineral rights.

The “fossils’ mineral properties are not what make them valuable, but instead the value turns on characteristics other than mineral composition, such as the completeness of the specimen, the species of dinosaur, and how well the fossil is preserved,” she wrote. “[D]inosaurs are not ‘minerals’ as that term is ordinarily understood.”

 


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