by Steve Fiffer
which was $300,000 more than he had intended to spend. Why
not? he said to himself. If he could get Sue for one point five,
the bank would surely give him the extra money.
In 1770, 200 years before Sue was discovered, workers in a chalk quarry
in Maestricht, the Netherlands, found a pair of fossil jaws m o r e than 3
feet long. They s u m m o n e d a local fossil collector, a retired G e r m a n mil-
itary surgeon. He promptly took the extraordinary specimen.
Anatomists called in to determine the jaws' origins were puzzled.
O n e thought that they may have c o m e from an ancient whale. Another
speculated that they belonged to a huge marine lizard. This seemed
impossible. No lizards this big had ever been spotted in the water or on
land. "Still," Wilford writes, "as so m a n y Europeans came to suspect, this
did seem to be a prehistoric monster, something that might have lived
before Noah, possibly before Adam, and passed out of existence. But
this was, it seemed, something they were not sure they believed in."
The find received m u c h notoriety in Europe. Despite his inability to
identify the jaws, the surgeon proudly displayed them. In time, he was
sued by the m a n w h o owned the land on which the jaws had been
found. In all likelihood this was the first lawsuit ever fought over a fos-
sil. The court held that the jaws belonged to the landowner. Eventually,
6 5
6 6
TYRANNOSAURUS S U E
they were displayed in a glass shrine in the residence of the local canon.
But the story does not end here. The fossil would go on to contribute to
a revolutionary scientific theory forwarded in 1801 by the Paris-based
paleontologist a n d anatomist Georges Cuvier.
It took 25 years and the French army to get the specimen to Paris.
In 1795, while the army of revolutionary France was fighting in
Holland, its leader, General Charles Pichegru, received a most unusual
order: Seize the famous jaws of Maestricht. Legend has it that Pichegru
offered 600 bottles of wine to the m a n w h o could liberate the fossil.
W h e t h e r by wine, song, or some other means, Pichegru accomplished
his mission. He shipped the jaws h o m e , where they were soon examined
by Cuvier, the foremost authority on marine life and fossils of his day.
Cuvier concluded that the jaws had indeed come from a huge
m a r i n e lizard that no longer existed and must have lived long, long ago.
This analysis, coupled with his analysis of ancient elephant bones
unearthed in Paris, led him to proffer the theory of extinction. The fos-
sils clearly suggested that some forms of prehistoric life no longer exist-
ed, he argued.
While the concept of extinction may seem perfectly obvious as the
twenty-first century begins, it was heretical to m a n y in the early days of
the nineteenth century. As Wilford notes, the Bible suggested something
quite different. Ecclesiastes 3:14 reads: "I know that, whatsoever God
doeth, it shall be forever: Nothing shall be put to it, n o r any thing taken
from it." Still, Cuvier and the jaws of what would eventually be named
Mosasaurus carried the day.
As the custody battle for Sue demonstrated, mankind's (and govern-
ment's) instinct to possess rare fossils was as alive in 1992 as it had been
two centuries earlier. The question of who owned Sue had become so tan-
gled that the institute felt it necessary to n a m e four parties as defendants
in its lawsuit: the United States Department of Justice, the Department of
the Interior, the Cheyenne River Sioux tribe, and the South Dakota School
of Mines and Technology, where the T. rex was being stored and, where
r u m o r had it, she might be displayed. The institute did not sue Maurice
Williams, as he did not claim ownership of the fossil.
In its suit before Judge Battey, the institute claimed ownership and
sought to "quiet title" u n d e r the Quiet Title Act, a federal statute that,
T A K I N G A H O W I T Z E R T O A F L Y 6 7
with certain exceptions, allows a party to sue the United States in a civil
action to adjudicate a disputed title to real property. But the n a m e of the
act was just about the only thing s u r r o u n d i n g Sue that was quiet. O n e
day after filing the lawsuit, the institute showed questionable taste at the
Dakota Days parade in Rapid City. Its float was a flatbed truck with
crates like those used to transport Sue after the seizure. On the truck, a
mock FBI agent a d m o n i s h e d the crowd to stay back lest they be wres-
tled to the ground.
The following day, it was Schieffer's turn to demonstrate question-
able judgment. In an op-ed piece in the Sunday Journal, he discussed the
pending criminal action. "Because legal action is being considered, I
cannot discuss m a n y specific facts of this case or argue its legal merits.
But it is appropriate to explain the policy basis for actions taken." The
policy explanation that followed looked remarkably similar to an argu-
m e n t of the legal merits.
The institute and the U.S. attorney weren't the only ones making
noise. Enter the normally staid Society of Vertebrate Paleontology: " T h e
Society of Vertebrate Paleontology firmly supports the action of the U.S.
attorney's office in Rapid City as regards the siezure [sic] of a specimen
of Tyrannosaurus rex that apparently was collected on federal lands
without proper p e r m i t t i n g procedures as required u n d e r federal
statutes," began a one-page press release issued May 20 on SVP letter-
head.
The release concluded: "The [SVP] is extremely concerned as to the
heightened activities of commercial collectors in recent years, resulting
in loss of invaluable, nonrenewable paleontological specimens to for-
eign i n t e r e s t s . . . . " It was signed by Dr. Michael O. W o o d b u r n e , profes-
sor of geology a n d vertebrate paleontology at the University of
California, Riverside. W o o d b u r n e , a past president of SVP, was current-
ly the chairman of its G o v e r n m e n t Liaison C o m m i t t e e .
The last line of the d o c u m e n t read: "This statement has been a u t h o -
rized by the president of the Society of Vertebrate Paleontology." This
apparently came as news to the president, Dr. C. S. Churcher, a profes-
sor of geology at the University of Toronto. Reached by the Journal's
Harlan, Churcher said that he had not seen the press release before
W o o d b u r n e had issued it to the news media. "I don't think we should
make a j u d g m e n t here," said Churcher. He agreed that no fossil should
6 8
TYRANNOSAURUS S U E
be taken illegally from any jurisdiction, but he said that he did not
understand the U.S. law on the subject. T h e seizure of Sue had, he said,
caught him by surprise. "From a Canadian point of view, I find it utter-
ly ridiculous," the SVP president added.
Seven m o n t h s earlier Larson had been warmly received at the SVP
convention in San Diego when he had spoken of Sue's "startling sur-
prises" and had invited fellow scientists to c o m e to Hill City to help
of the society, I'm deeply appalled by Michael Woodburne's actions," he
told the Journal. Appalled but not surprised. Andrew Leitch once told
Discover that W o o d b u r n e and a few like-minded colleagues were con-
ducting a "witch h u n t " against commercial collectors and considered
Peter Larson "the antichrist."
Some at the institute suspected that a handful of SVP members jeal-
ous of Larson's success may have pressured Schieffer or his superiors in
Washington, D.C., to seize the dinosaur by asserting that Sue's skull was
about to be sold to a private party. Larson has never found a smoking
gun, b u t he feels somewhat certain that a m e m b e r or m e m b e r s spread
the story that Sue's skull wasn't really going to NASA—that, instead, it
was going to the Georgia-based defense contractor, Martin Marietta
Corporation (which subsequently merged with Lockheed to become
Lockheed Martin). In reality, Martin Marietta was merely helping to
ship the skull to Huntsville. Schieffer insists that the timing of the raid
had nothing to do with the imminence of the CAT scan; the investiga-
tion had merely reached the stage where the seizure of evidence was
appropriate.
Newspaper editorials and commentaries in several cities across the
c o u n t r y asked why Sue had to be seized at all. T h e Cleveland Plain
Dealer, for example, acknowledged that "an international bidding war
for fine dinosaur fossils has m a d e tough stewardship of the U.S. fossil
record essential," but, the paper c o n t i n u e d , " . . . Schieffer displays tough
stewardship only of his media image. . . . T h e recent action targets a
respected research institute that has been at the forefront of dinosaur
studies instead of the fossil brigands w h o plunder and destroy key evi-
dence of o u r 65-million-year-old dinosaur and geologic past." Writing
in the Washington Times, conservative columnist Bruce Fein lamented:
" T h e dispute epitomizes criminal justice madness and the potential for
T A K I N G A H O W I T Z E R T O A F L Y 6 9
societal strangulation by omnipresent intervention. . . . Doesn't the
Tyrannosaurus rex farce suggest that the legal tipping point has been
reached or passed in the United States?"
Native American writers also weighed in. In his "Notes from Indian
Country" column in the Lakota Times, Tim Giago did not pass judg-
ment on the legal issues. Focusing on the raid itself, he observed: "By
charging into Hill City as if storming the beaches of Anzio, the federal
marshals put the Cheyenne River Sioux tribe and other Indian tribes in
a bad light. The near-violent actions m a d e it appear the tribes had
something to do with it when, in fact, the entire scenario developed in
the office of . . . Kevin Schieffer. Certainly the bones weren't going to
j u m p up and run off on their own."
The Rapid City Journal, having already m a d e its feelings k n o w n ,
asked its readers what they thought: " W h o should get Sue?" Only 5.4
percent of the m o r e than 1000 respondents to the "informal and whol-
ly unscientific poll" voted for the federal government. A handful more,
5.6 percent, said Sue belonged to Maurice Williams. Thirteen per cent
said the tribe was the rightful owner. And an overwhelming majority, 76
percent, said Sue should go h o m e to the institute.
The institute certainly wanted her h o m e — a n d sooner rather than
later. Five days after filing the lawsuit requesting title to Sue, Duffy, a
dapper, h a n d s o m e m a n in his middle thirties, with neatly coiffed brown
hair, returned to court. This time he filed a m o t i o n for injunctive relief.
Arguing that the fossil was being irreparably damaged in the machine
shop, the motion sought the immediate return of Sue to the institute
pending Judge Battey's decision of the ownership question.
In affidavits attached to the motion, both Peter and Neal Larson
noted several "physical and biological processes" that threatened the T.
rex. The physical processes included mineralization, hydration, crystal-
lization, and oxidation. Biological processes included mold and mildew
forming in the cracks of the bone, conditions that could quickly erode the
bone surface. Some of these problems had been caused by failing to let the
wet plaster casts "protecting" Sue's bones dry properly and by using wet
toilet paper to help seal the bones in the plaster. The brothers said that the
casts should be removed and preservation of the bones should continue.
The institute, they claimed, was the only venue nearby where such work
could be done and where Sue could be properly protected.
7 0 TYRANNOSAURUS S U E
Judge Battey, a former prosecutor appointed to the bench by Ronald
Reagan, rendered a decision the following day. The judge appeared to
the robe born. He was a tall, distinguished looking gray-haired m a n in
his sixties partial to b o w ties. His "presence and charisma" reminded
Peter Larson of Charlton Heston.
In making this decision, Battey never addressed the allegations
claiming damage to the fossil. Instead, he viewed the action for injunc-
tive relief as an attempt to regain evidence seized in a criminal investi-
gation. Unwilling to permit this, he denied the motion. Duffy immedi-
ately appealed the decision to the United States Court of Appeals for the
Eighth Circuit.
In his brief to the court, Duffy noted that m o r e than mold and
mildew threatened Sue. The bones were precariously stacked and were
positioned dangerously close to a boiler and corrosive chemicals. He
also m a d e it clear that the government could have access to Sue, should
the court order her returned to the institute. On June 26, the court
ruled. "This case concerns the care and custodianship of a 65-million-
year-old pile of bones n a m e d Sue," began Judge Frank Magill in his
opinion for the three-judge panel. He then addressed Sue's current
living arrangement: "The federal government has stored this irreplace-
able relic u n d e r circumstances that even its o w n experts describe as
inadequate."
Turning his attention to the raid itself, Magill wrote: "The govern-
m e n t has admitted it does not need 10 tons of bones for evidence in its
criminal investigation. . . . We find the government's rationale for the
seizure inadequate. The seizure not only keeps [the institute] from
accessing the fossil, b u t it deprives the public a n d the scientific c o m m u -
nity from viewing and studying this rare find."
Despite making findings so favorable to the institute, the court did
not order the government to return Sue to Hill City. Instead, it ordered
Judge Battey to hold a full hearing to establish proper custodianship
pending determination of the ownership question. Battey complied,
setting the hearing for July 9.
Schieffer had trouble with the Eighth Circuit's ruling. He noted that
the court had seemed to diminish the severity of the potential charges
facing the institute. Magill had written that the
seizure was "based on an
investigation into criminal charges that could result in, at most, 90 days
T A K I N G A H O W I T Z E R T O A F L Y 7 1
in jail and a $500 fine." Wrong, said the acting U.S. attorney. In fact, the
search warrant for Sue had listed two misdemeanors a n d o n e felony,
and the m a x i m u m penalty for removing antiquities from federal land
was six m o n t h s in jail and a $5000 fine for individuals or a $10,000 fine
for companies.
Was the felony still u n d e r consideration? Schieffer refused to c o m -
m e n t when asked this question by a Rapid City radio station after the
Eighth Circuit ruled. But one thing was clear: A federal grand jury had
been convened on June 16 to consider criminal indictments against the
Larsons and others.
Five days before that grand jury had convened, Schieffer had slapped
the institute with a subpoena for virtually all its business records—some
50,000 documents, letters, maps, videotapes, and photographs, Peter
Larson estimated. Duffy immediately went to court to quash the sub-
poena, saying that it was far too broad. "They came and asked for every
record for them to c o m b through and will try to find a crime, and we
believe that's excessive," he said. Judge Battey allowed the subpoena to
stand.
Neal Larson was angry. "[The subpoena] has nothing to do with the
court case. They're just trying to keep us busy, up in the air, and keep us
mad," he told the press. "And it's working."
Larson wasn't the only person angered by the action. Four days
later, Wentz, w h o had gone from chief preparator of Sue to chief orga-
nizer of the "Free Sue" movement, led some 40 protesters to Pierre, the
state capitol. The delegation lined up outside the federal building and
held up signs reading, "DINOSAURS ARE FOR CHILDREN, N O T
PRISON," "SEIZE DRUGS, N O T FOSSILS," a n d " H O N K FOR SUE."
Of course, neither the shouting n o r the h o n k i n g had any impact on
the criminal investigation. Within a week of being convened, the grand
jury was visited by a forgotten face. "Fossil Finder Testifies in Sue Case"
ran the headline in the Sioux Falls Argus Leader on June 2 1 .
Since parting c o m p a n y with Peter Larson almost two years earlier,
Sue Hendrickson had lived up to her "Indiana Jones" nickname. She had
