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Montana Dinosaur Fossils: A Bone to Pick in Ownership

The Montana Supreme Court has accepted a certified question from the Ninth Circuit Court of Appeals concerning whether, under Montana law, dinosaur fossils constitute “minerals” for the purpose of a mineral reservation.

Who owns dinosaur fossils in Montana?

History Lesson

According to an article in Science Magazine entitled, Are Dinosaur Fossils ‘Minerals’? The Montana Supreme Court will Decide High Stakes Case, “[p]ristine dinosaur fossils discovered in Montana have sparked a property rights dispute that has hit paleontologists like an asteroid.”

The landmark case is Murray v. BEJ Minerals, LLC, 924 F.3d 1070, 1074 (9th Cir. 2019), certified question accepted, No. OP 19-0304, 2019 WL 2383604 (Mont. June 4, 2019). The fossil discovery at issue is reportedly the “mother lode of fossils” – the “Dueling Dinosaurs,” triceratops fossils and a complete T. rex named the “Murray T. rex.” The Dueling Dinosaurs are reportedly two complete fossils of two dinosaurs “locked in combat” and the Murray T. rex is reportedly considered one of only a dozen ever found in such condition.

Traditionally, fossils are not considered minerals and belong to the surface, not the mineral, estate. However, the matter was not clear under Montana law and litigation ensued.

Procedural History:

The Ninth Circuit Court of Appeals had previously determined that fossils were “minerals” that belong to the owners of the mineral estate – this controversial decision is what sparked the certified question to the Montana Supreme Court.

Montana Legislation:

Recognizing that a gap existed in Montana law as to whether fossils constitute minerals in light of the Murray case, the legislature addressed the skeleton in the closet.

HB 229 was signed into law by the Governor of Montana on April 16, 2019. The full legislative history of HB 229 can be found here. The full text of the enrolled bill of HB 229 can be found here.

In short, HB 229 declared that dinosaur fossils are not minerals and that fossils belong to the surface estate.

Despite the Montana legislation, however, resolution of the Murray case is not extinct. The effective date of HB 229 was immediate, but its retroactive application has yet to be confirmed. We will continue to monitor the case and how the Montana Supreme Court responds to the certified dino question. Stay tuned!

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume IX, Number 247

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