New Montana law aims to protect fossil discoveries for landowners

By Jonna Lorenz
Commercial paleontologist Clayton Phipps lies next to a duckbill or Hadrosaur dinosaur skeleton that he excavated in 2018. Photo by Nathan Cooper
1 of 3 | Commercial paleontologist Clayton Phipps lies next to a duckbill or Hadrosaur dinosaur skeleton that he excavated in 2018. Photo by Nathan Cooper

April 19 (UPI) -- A new law enacted in Montana this week declares fossils are part of surface rights -- not mineral rights, drawing support from fossil hunters, paleontologists, museums, landowners and dinosaur lovers.

"Now we have the needed protections and the guidance for the citizens and the courts going forward," said Rep. Brad Hamlett, D-Cascade, the bill's sponsor. "Montana has spoken."


The law, which became effective upon Gov. Steve Bullock's signature Tuesday, was drafted in response to a legal battle over who owns Montana's "Dueling Dinosaurs," 66 million-year-old fossils found in 2006 that appear to be locked in battle.

While the law does not directly affect that lawsuit, it states "fossils are not minerals and that fossils belong to the surface estate, unless conveyed by a clear and express grant."

"This was a very significant bill for our group," said Charles Denowh of United Property Owners of Montana. "We saw all sorts of unintended consequences that could have arisen if the precedent had become that the mineral estate owned dinosaur fossils. We saw a lot more conflicts happening between surface owners and mineral owners if that were the case."


Montana is among North America's most significant fossil sites, where the continent's first identified dinosaur remains were found in 1854. The state  also boasts the world's first identified T.rex in 1902 and North America's first baby dinosaur bones in 1978, according to the Montana Dinosaur Trail, whose museums were visited by more than 333,000 people last year.

Dinosaur dispute

The new law addresses concerns that arose from a 9th U.S. Circuit Court of Appeals ruling in November that overturned an earlier ruling in the dispute over who owns the "Dueling Dinosaurs" and several other fossils found on a ranch in Garfield County. The 2-1 decision in the case, Murray v. BEJ Minerals, found that definitions of "mineral" in Montana law were contradictory and inconclusive -- and that dinosaur fossils pertain to mineral estates.

"We felt that there was case law at both the state and federal level that underpinned the right of the surface owner to fossil remains," Denowh said. "Frankly, we think the 9th Circuit got it wrong. And that litigation is still ongoing, but we felt that in the interim and to send a message to the court, we felt that it was necessary to run this legislation to clarify things."


The 9th circuit voted to rehear the case en banc, according to an order filed April 4.

The "Dueling Dinosaur" fossils were found in 2006 on land owned by Lige and Mary Ann Murray. Jerry and Robert Severson kept a portion of the property's mineral rights when they sold the property to the Murrays before the fossils were discovered. In Murray v. BEJ Minerals, the Seversons asserted a claim to the fossils.

Shane Swindle, an attorney representing the Seversons, declined to comment for this story.

Clayton Phipps, who started fossil hunting commercially in 2003 in addition to operating a small cattle ranch, was searching for fossils with Mark Eatman and Chad O'Connor when the trio came across the "Dueling Dinosaurs."

"Mark found the first fragments that led us to the pelvis of the plant eater," Phipps recalled. "Chad had to talk us into going back out there."

A typical dinosaur pelvis would be expensive to excavate and difficult to market, he said. But they decided to go back to the site, ultimately discovering that there was much more to the find than they originally thought and embarking on the costly excavation process of the fossils, which have been estimated to be worth millions.


Commercial paleontologists typically work out contracts with private landowners to collect  fossils on the land in return for a percentage of any sales from what they collect.

"It's not like buying a lottery ticket and winning," Phipps said. "It broke me twice. I pretty well used all of my resources."

The "Dueling Dinosaurs" currently are on loan to an undisclosed U.S. museum.

Rights to fossils

Phipps attended Tuesday's bill signing, along with his 12-year-old son, Luke, who presented fossils to Bullock and Hamlett.

"He was shaking yesterday because he's been worried about this," Phipps said of Luke, noting that the 9th Circuit ruling "turned everything upside down."

Luke has been involved in fossil hunting with his dad and found a valuable triceratops when he was 10.

"It's nice to see the next generation of scientists already actively involved in the field pursuing this, and now that young lad can pursue what he wants to without worrying about it being taken away," Hamlett said.

Proponents of the legislation argued that for more than 100 years, rights to fossils have been established under a 1915 decision that "(f)ossil remains of dinosaurs and other prehistoric animals are not mineral within the meaning of the United States mining laws." That decision involved Earl Douglass, a paleontologist at the Carnegie Museum in Pittsburgh, who found dinosaur fossils in what is now Utah's Dinosaur National Monument.


Peter Larson, president of the Black Hills Institute of Geological Research in South Dakota, said the 9th Circuit ruling brought uncertainty to fossils at museums around the world by raising the possibility of ownership challenges by mineral estates.

Larson is known for leading the team that excavated the famous T.rex named "Sue," which was the subject of a federal land dispute in the 1990s. He has excavated fossils in states including South Dakota, Montana, North Dakota, Wyoming, Nebraska and Kansas, and called the new law in Montana "wonderful." He was involved with the lawsuit because of his work with a T.rex on the Murray ranch.

"If this isn't reversed, at least the other fossils are safe and these will be the only fossils that have ever suffered the indignity of being called a mineral," Larson said.

While Montana's action will cover fossils collected in the state, Larson said, fossils collected in other states could remain in question if the 9th Circuit ruling stands.

"I think what it does is it sets the bar for other states here in the West to include it in their mining code," Nate Murphy, director of the Judith River Dinosaur Institute in Billings, said of the law.


After the 9th Circuit ruling, Murphy said he pulled together a group of scientists to brainstorm solutions to what he called a "can of worms." They were instrumental in drafting the legislation.

"Most states don't have any kind of language" clarifying fossil rights, he said. "We thought to ourselves, 'Maybe we can set the example of how to get this done the easiest way.'"

Ensuring availability

John Scannella, curator of paleontology at the Museum of the Rockies in Bozeman, testified on behalf of the legislation and was at Tuesday's bill signing.

"That was great to see happen," Scannella said. "I'm glad that it was signed, and it helps ensure that the fossils can remain available for study and education."

The Museum of the Rockies has one of the largest collections of dinosaur fossils in the world with more than 10,000 cataloged specimens and more than 400,000 individual fossils.

The legislative effort brought together a diverse group of stakeholders, including commercial and institutional collectors, landowners and museums.

"The group of proponents that you see there, these people typically don't agree on anything, but they agree on this bill," said Victor Bjornberg, volunteer coordinator for the Montana Dinosaur Trail.

Latest Headlines