Skeletons in Their Closet

The feds had a bone to pick with this fossil-hunting family.

Understanding fossil regulations can be as difficult as unearthing the old bones themselves. Much of the confusion stems from the fact that there is no federal law specifically prohibiting their collection. As a result, local law enforcement attention to the matter varies from place to place, depending on local officers' interest in the matter.

Because of the lack of laws, government agents trying to stop commercial fossilers have had to employ a handful of peripheral statutes to get their men--the Antiquities Act of 1906, for example, and other rules that prohibit the stealing of federal property.

Other legal ruts can make prosecution a bumpy ride. For instance: When it comes to property rights, are fossils included in a landowner's surface rights? Or should they be considered minerals?

This is not just some hypothetical brainteaser chewed over by real estate agents between showings. In 1991 a federal mining bureaucrat was busted in western Wyoming with an alligator fossil he'd dug from private land. There was no question he didn't have permission to be there. But prosecutors found themselves with a problem: Who was the victim? Was it the Rock Springs Grazing Association, which owned the surface rights to the land? Or was it Union Pacific Railroad, which owned the mineral rights?

The man pleaded guilty, and the grazing association and the railroad took joint ownership of the fossil. Eventually the alligator was handed over to the Western Wyoming Community College's dinosaur display--as a joint bequest. The question of who owns the rights to the fossil remains unanswered.

And then there are basic ethics. The Society of Vertebrate Paleontology, a mostly academic organization, has taken a hard line toward fossil ownership. Its members contend that fossils and ancient bones are our national heritage and belong to all of us--but that only Ph.D.s at reputable research institutes may dig them up and ponder their significance.

In its recent crackdown on suspected poachers, the government seems to have seconded this position--that fossils buried on federal lands are a sacred public trust. Such delicate, nonrenewable resources as fossils, they say, should not be disturbed, and particularly not by people trying to make a buck.

Commercial hunters scoff at this. They believe that fossils are enjoyed by people only when they are out of the ground and visible, and that the more people there are hunting fossils, the more fossils there will be to admire. They point out that some of the prehistoric exhibits on display today in museums were uncovered by commercial diggers. Besides, they add, more unexcavated fossils are destroyed in a single rainstorm than are lost to all the country's for-profit fossil hunters put together in a year.

"In South Dakota, we can kick through vertebrates laying like cobwebs on the shale," says Patrick Duffy, a Rapid City attorney who recently represented a dinosaur-poaching suspect. "They're just lying there--but not for long. We just had a big rainstorm here the other day, and I can guarantee you that it destroyed thousands and thousands of fossils. The idea that somehow the government's activities are protecting these fossils is preposterous. Their policy of restricting digging to a few Ph.D.s has resulted in the mass destruction of the very thing these people profess to hold sacred."

It also has not escaped the commercial diggers' notice that the federal agencies suddenly professing to hold their noses at the idea of private profit from a scarce public resource have a peculiar history. They are the same branches of government that lease grazing rights to ranchers for below market value, sell mining rights to private companies for a fraction of their worth and have permitted old-growth logging on federal lands for prices that would make Paul Bunyan blush.

Between the hardliners on both edges of the issue, most people agree that some commercial fossiling is okay. Wyoming, for instance, provides a nod to the existence of for-profit diggers, who play a role in the state's economy. Diggers must purchase a permit and turn over a percentage of every sale of a fossil found on state land. While the laws themselves are relatively permissive, the penalty for violations is extreme: Up to ten years in prison and a $10,000 fine.

Still, even in Wyoming, which likes to think of itself as the most practical of states when it comes to prehistoric remains, fossil policy doesn't always make a lot of sense. The state law also requires commercial diggers who happen across a rare or unusual find on Wyoming land to relinquish it to the state. Such exceptional fossils, lawmakers reasoned, need to be held in public trust for all residents and studied for the greater good.

Although the program essentially relies on the honor system, to date dozens of uncommon finds have been surrendered. At first the state designated the University of Wyoming at Laramie as the repository of the public's fossils. Several years ago, however, the university, which had been storing the artifacts in a basement room, concluded it didn't have the resources to curate them and so turned the job over to the state geological survey. For the past three years, the fossils have been stored on shelves in a dark room of a state office building, out of sight of everyone. A department spokesman says he hopes the state legislature will someday provide them with enough money to display the finds, but adds that he doesn't expect that to happen anytime soon.

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