by Steve Fiffer
that in seizing Sue, the government had once again gone too far. Over
the last two m o n t h s , the longtime Republican paleontologists and many
of their friends had evolved into libertarians.
W h e n testimony concluded two days later, Judge Battey immediate-
ly a n n o u n c e d his decision: Sue would stay where she was. "The court
has been presented with no credible evidence that the fossil is suffering
damage," he said. He added that both H u n t and Shelton were particu-
larly strong witnesses. In contrast, he wrote in his formal opinion three
days later, "The court finds that the interests of the plaintiffs [the insti-
tute] and their expert [witnesses] are m o r e commercial than scientific.
Their interest in science is secondary to the financial value of the fossil's
possession." Larson found this last statement particularly perplexing.
The judge had apparently ignored the fact that long before the seizure,
Larson had a n n o u n c e d that Sue was not for sale and had invited SVP
m e m b e r s to study her.
Having settled the t e m p o r a r y custody issue, Battey turned to the
terms of Sue's interim storage. T h e judge said he would allow only nec-
essary care and maintenance of the fossil until ownership was decided.
Both the institute a n d the government could submit requests for stor-
age conditions to h i m by August 15. Finally, the judge had harsh words
T A K I N G A H O W I T Z E R T O A F L Y 7 9
for Neal Larson. Changing the dates on the boxes "may well constitute
obstruction of justice," he said.
The Larsons and their supporters were devastated. Judge Magill's
Eighth Circuit opinion had suggested that Sue was inadequately housed
in the machine shop and was better off at the institute. Now Judge
Battey had ruled otherwise, ordering that he would permit no "curation
of this specimen" until he determined ownership. How was science
served when research was halted? they asked. As the c o u r t r o o m e m p -
tied, Neal Larson sat head in hands, weeping. Duffy a n n o u n c e d that
once again he would appeal Judge Battey's decision.
At one point during the hearing, Duffy had attempted to put the dis-
pute in perspective for Judge Battey: "No federal c o u r t r o o m should end
up the tool of what is essentially a faculty war between paleontologists,"
he argued. Like many wars, this one seems to have been fought for con-
trol of turf deemed valuable by the combatants. In this case the battle was
over public lands rich with fossils of scientific and commercial import.
The law with respect to the taking of archaeological remains from
federal lands has been clear since the enactment of the Archaeological
Resources Protection Act of 1979 (ARPA). The act imposes stiff penalties
for the removal of h u m a n artifacts and skeletons from public lands. It has
this to say regarding fossils: "Nonfossilized and fossilized paleontological
specimens, or any portion or piece thereof, shall not be considered
archaeological resources . . . unless found in an archaeological context."
Similar legislation or clarity regarding paleontological resources
found on public lands does not exist. Schieffer's assertion that the
Antiquities Act applied to the removal of fossils seemed to fly in the face
of several court cases and D e p a r t m e n t of Interior m e m o r a n d a from
1977 and 1986. In the absence of o n e controlling federal statute, a
patchwork permit system had evolved. Before collecting or removing
any specimens, fossil hunters were supposed to get the permission of
whichever federal agency was responsible for the land in which they
were interested, typically the Bureau of Land M a n a g e m e n t or the U.S.
Forest Service. With limited resources for policing, these agencies
enforced the permit system sparingly a n d randomly.
In the mid-1980s, a panel of the National Academy of Sciences
addressed the question of fossil collecting on public lands. The panel
8 0 TYRANNOSAURUS S U E
solicited input from land managers, professional groups, amateurs, and
commercial collectors. Larson was a m e m b e r of the panel. He noted that
there were thousands of amateur collectors in America, a few hundred
university-affiliated paleontologists, and about 100 commercial collec-
tors. He also noted that every year millions of fossils "weathered out" on
federal land so that they were visible. Sadly, they soon eroded and were
lost to everyone because no o n e was there to collect them. He conclud-
ed that if m o r e people were allowed to look for fossils, m o r e fossils
would be found.
In 1987, after three years of study, the panel issued its findings. The
243-page report r e c o m m e n d e d that all public lands in the United States
with the exception of national parks and D e p a r t m e n t of Defense p r o p -
erty be opened "for scientific purposes" to commercial collectors and
amateurs as well as paleontologists affiliated with m u s e u m s and univer-
sities. "Paleontology is best served by u n i m p e d e d access to public lands,"
the panel declared.
The panel also r e c o m m e n d e d that "fossils of scientific significance
should be deposited in institutions where there are established research
and educational p r o g r a m s in paleontology." But this did not appease
hard-line o p p o n e n t s of universal access. T h e war between usually civil
scientists was on.
The brethren of the SVP were divided on this issue. However, a
vocal faction of SVP m e m b e r s , including H u n t a n d W o o d b u r n e , lob-
bied against adoption of the r e c o m m e n d a t i o n . As a result, it died.
W o o d b u r n e t u r n e d d o w n a request to be interviewed for this book
after receiving a list of questions concerning commercial collecting in
general and the Larsons in particular. He did, however, issue a statement
summarizing his position:
T h e full educational a n d scientific potential of all vertebrate
fossils can only be realized if they are collected in a m a n n e r
consistent with those goals, and retained in perpetuity in the
public d o m a i n in educational a n d scientific institutions that,
u n d e r permit, steward those collections for all Americans.
Commercialization of fossil vertebrates is inconsistent with
those goals.
T A K I N G A H O W I T Z E R T O A F L Y 8 1
W h e n it was suggested to H u n t that this book would explore both
sides of the debate over commercial collecting, he responded that jour-
nalists have "had the wool pulled over their eyes" by "glib" p r o p o n e n t s
of the universal access camp. To suggest that there is a debate suggests
that the viewpoint of the commercial collectors has some credence, he
said, when in reality it has no credence. He said that his o w n statements
are often taken out of context by writers and that he generally prefers
not to participate in the dialogue.
Larson was willing to discuss what he believes to be the origin a n d
history of Hunt's animosity towards h i m . He points to an incident that
&nbs
p; occurred on Hunt's turf in the mid-1980s. T h e institute had gone to
Nebraska in search of horses from the Pliocene Epoch 5 million to 2.6
million years ago. Larson asked a rancher near the town of Culbertson
for permission to look on his property. T h e rancher informed Larson
that a University of Nebraska team had previously dug on the land, b u t
they hadn't been back for s o m e time. Larson then contacted the grad-
uate student w h o had supervised the dig a n d asked if the institute
could explore the site. This student, w h o was in Hunt's p r o g r a m , "said
he was finished with his research and had no problem with o u r col-
lecting," according to Larson. T h e institute then found three-toed
Pliocene horses. " H u n t was furious," says Larson, w h o adds that, to his
knowledge, the University of Nebraska team has never returned to the
site.
After this incident, Larson and H u n t clashed over political turf—SVP
policy. When H u n t became chairman of the SVP's government liaison
committee—the body responsible for formulating legislative proposals—
he closed meetings to all SVP members except those on the committee,
says Larson. Larson was allowed to speak to the committee, but he had to
leave the r o o m when finished. He protested this, as well as a poll about
collecting that H u n t sent to those in the SVP. Believing the poll asked the
wrong questions and that the data in the questionnaire about collecting
were skewed, Larson sent his own questionnaire to members.
How did H u n t respond to Larson after these clashes? "He never
screamed at me, but he treated me as if I weren't h u m a n , " says Larson.
From his previous statements, it appears that H u n t truly believes in
his position and is tenacious in advancing it. Commercial collecting,
8 2 TYRANNOSAURUS S U E
particularly collecting on public lands, is, to him, an evil. "This is a reli-
gion to him," says Larson.
Those w h o held Hunt's views had been pressing for a crackdown on
commercial collectors before the seizure of Sue. T h e federal government
had responded in the mid-1980s by undertaking an investigation of fos-
sil hunters in Wyoming as well as in South Dakota. The institute had
b o u g h t some specimens from the Wyoming hunters, and the govern-
m e n t had subpoenaed records of these transactions. "We complied, gave
t h e m the d o c u m e n t s they wanted," says Larson.
T h e government's claim that Sue had been discovered on federal
lands seemed to energize the anticommercial faction. In addition to
intervening in the lawsuit, the SVP's executive committee approved a
resolution calling for prohibition of commercial collectors from public
lands and authorizing the expulsion of SVP m e m b e r s w h o "engage in
commercial collection a n d sale of vertebrates from federal lands." The
committee's June 26 letter to Schieffer explained its reasoning:
Commercial collecting of fossil vertebrates has p r o m o t e d the
charging of collecting fees on private lands. Professional verte-
brate paleontologists cannot afford these fees for both financial
a n d ethical reasons. As a result, professional paleontologists in
the employ of universities and m u s e u m s must rely on federal
lands for access to i m p o r t a n t paleontological resources to con-
tinue their research programs. Hence, prohibition of c o m m e r -
cial collecting on federal lands is essential to scientific progress
in vertebrate paleontology.
During the s u m m e r of Sue, spurred by the renewed furor over com-
mercial collecting on federal lands, U.S. Senator Max Baucus of Montana
introduced legislation intended to give fossils the same protection that
archaeological remains enjoy u n d e r ARPA. Baucus's proposal, titled
"Vertebrate Paleontological Resources Protection Act," required that any
collector—professional or amateur—secure a permit before picking up
a vertebrate fossil and could collect specimens only if affiliated with a
m u s e u m or school that "has no direct or indirect affiliation with a com-
mercial venture" that collected fossils. "If we continue to allow these p u b -
T A K I N G A H O W I T Z E R T O A F L Y 8 3
lie resources to be sold to the highest bidder, we stand to lose crucial
sources of scientific research and public education," Baucus said when
introducing the bill. Violations of the act could be punishable by a
$10,000 fine and up to one year in prison. A second offense could result
in up to five years in prison and a fine of up to $100,000. The New York
Timess Malcolm Browne noted: '"Under the proposed law even a
camper who wandered into a national park or Indian reservation and
removed a fossil bone might be sent to jail for up to one year."
The Baucus bill eventually died in a Senate committee. But Baucus
and the SVP executive committee did have a legitimate b o n e to pick
with at least some commercial collectors. Clearly, there were s o m e "fos-
sil brigands." The Baucus caucus pointed to a study of s o m e 40 fossil
sites on public lands. Fully one-fourth of these sites had been vandal-
ized, surveyors reported. T h e Larsons and other established commercial
hunters w h o deal regularly with m u s e u m s and universities as well as
private collectors had no patience for these plunderers, either. They gave
a bad n a m e to the profession a n d ruined potential collecting sites a n d
should be punished, Peter Larson said.
Larson, however, took issue with the SVP executive committees'
jeremiad. A line-by-line reading did reveal several fallacies.
Responding to the charge that commercial hunters caused private
landowners to levy collecting fees, Larson said, let he w h o is without
blame cast the first stone (or fossil). He referred his critics to the period
after the Civil War. At that time the search for dinosaurs moved from the
eastern United States to the West, where Joseph Leidy had first identified
the remains of Trachodon and Deinodon in 1858. Two scholarly paleon-
tologists, Othniel C. Marsh, a professor at Yale and curator of the univer-
sity's Peabody Museum, and Edwin Drinker Cope, a former Haverford
College professor who often conducted surveys for the United States—
paid local landowners and "scouts" for bones and directions to fossil beds.
The practice led Leidy to complain: "Professors Marsh and Cope, with
their long purses, offer m o n e y for what used to come to me for nothing,
and in that respect I cannot compete with them."
Larson and others also took issue with the SVP's assertion that
financial and ethical considerations m a d e it impossible for paleontolo-
gists in the employ of universities and m u s e u m s to pay private collect-
8 4 TYRANNOSAURUS S U E
ing fees. First of all, not all private landowners charged collecting fees.
Moreover, m a n y of the universities and m u s e u m s that employed pale-
ontologists had no financial or ethical qualms about paying commercial
collectors directly for their finds. Indeed, most of the Black Hills
Institute's sales were to universities and m
u s e u m s .
It was unclear that these supposedly financially strapped and ethi-
cally b o u n d university and m u s e u m paleontologists were truly limited
to collecting on federal lands. But even if this were the case, why was, as
the H u n t letter stated, "prohibition of commercial collecting on federal
lands . . . essential to scientific progress in vertebrate paleontology"?
There were millions of acres of federal land rich in fossils. Wasn't there
enough land to go a r o u n d for the commercial collectors as well as for
the university and m u s e u m paleontologists? O n e was tempted to ask
why H u n t and his colleagues, w h o thought so little of the scientific
expertise of the Larsons and their ilk, wouldn't be able to demonstrate
that in the field the fittest scientists survive.
Baucus a n d the SVP 13 had a point that, lamentably, some com-
mercial collectors were finding i m p o r t a n t specimens and removing
t h e m from scientific inquiry (in the United States, at least) by selling
t h e m out of the country or to individuals instead of institutions. The
M u s e u m of the Rockies' Leiggi, w h o had encouraged Baucus to draft
legislation, noted that a Japanese corporation had offered $4 million for
the skull of the T. rex his m u s e u m unearthed in 1990.
Legitimate commercial fossil hunters did not deny that the willing-
ness of deep-pocketed foreign m u s e u m s and private collectors at h o m e
a n d abroad had raised the price that not-for-profit institutions in the
United States had to pay for specimens. They noted, however, that com-
mercial collectors had found m a n y of the most i m p o r t a n t fossils that
had ended up in the hands of American scientists. The institute had
found Sue, the best T. rex ever, on what the government claimed was
federal land. Was the SVP saying that because the Larsons were com-
mercial collectors, science would have been better off if the dinosaur
had never been found at all?
Bakker, for one, saw the SVP position as disturbingly elitist. "It's a
classic ivory tower response," he told Discover magazine shortly after the
seizure. "Because these people have their PhDs, they think they have
s o m e God-given duty to protect antiquities and fossils. They're like self-
T A K I N G A H O W I T Z E R T O A F L Y 8 5
