Eminent cultural property attorneys, Peter Karl Tompa and Michael McCullough, filed a persuasive (and entertaining) motion to dismiss the U.S. government”s complaint for forfeiture in rem, The United States of America v. One Tyrannosaurus Bataar Skeleton.

Eric Prokopi, owner of the Bataar Skeleton, claims to have “purchased several groups of fossils on the open market and spent a year of his life and considerable expense identifying and compiling component parts of, and then restoring and mounting, the Tyrannosaurus bataar fossil (the “Display Piece”) so that it could be sold at auction.”

In May of 2012, the Bataar fossil was listed for auction in Heritage Auctions’ May 20, 2012 Natural History Auction catalog. The fossil’s listing drew considerable interest-including that of Mark A. Norell, Chairman and Curator-in-Charge of Fossil Reptiles, Amphibians, and Birds at the American Museum of Natural History.

“Mr. Norell believed there was almost no chance that the 24-foot-long, 8-foot-tall fossil had been legally removed from Mongolia, the only country where that type has been found. On May 17, three days before the auction, he wrote an open letter that was posted to listservs frequented by paleontologists. “As someone who is intimately familiar with these faunas, these specimens were undoubtedly looted from Mongolia,” the letter said…. The catalog led Mr. Norell to compose his letter, which landed on the desk of Tsakhia Elbegdorj, the president of Mongolia…. Russ Buetter, Sale of $1 Million Dinosaur Skeleton is Halted After Origin Questioned. The New York Times. June 19, 2012.

President Elbegdorj called a Houston, TX lawyer with whom he was familiar. The Houston attorney secured a temporary restraining order from a federal Texas judge. The attorney told the New York Times: “The auctioneer said the sale would proceed contingent on the outcome of a court case.” Russ Buetter, Sale of $1 Million Dinosaur Skeleton is Halted After Origin Questioned. The New York Times. June 19, 2012.

The composite piece sold for $1,052,500.00.

In June of 2012, the U.S. government filed a complaint for forfeiture in rem against the auctioned Bataar fossil.

The complaint for forfeiture of the fossil appears premised on assertions that the Bataar fossil was illegally removed from Mongolia (under Mongolian law) and/or was fraudulently imported into the United States.

Central to the government’s fraudulent importation argument is an assumption that what constitutes the Bataar skeleton at auction is constituted by a series of dinosaur fossils that Prokopi imported from Great Britain in March of 2010. The complaint asserts:

The Customs Importation documents for the Defendant Property contain several misstatements. First, the country of origin for the Defendant Property was erroneously listed on the Customs Entry Form as Great Britain rather than Mongolia. Second, the Defendant Property was substantially undervalued in the Customs Importation documents. The importation documents list the value of the Defendant Property as $15,000 contrary to the $950,000 – $1,500,00 value listed in the Heritage Auctions May 20, 2012 Natural History Auction catalog and the actual auction sale price of $1,052,500. Third, the Defendant Property was incorrectly described in the Customs Importation documents as “2 large rough (unprepared) fossil reptile heads;” “6 boxes of broken fossil bones;” “3 rough (unprepared) fossil reptiles;” “1 fossil lizard;” “3 rough (unprepared) fossil reptiles;” and “1 fossil reptile skull.” The United States of America v. One Tyrannosaurus Bataar Skeleton, Complaint for Forfeiture In Rem.

The complaint for forfeiture in rem offers scant evidence to exclude other possibilities-including assertions by Prokopi that the mounted composite fossil is a product of various purchases and substantial restoration. Furthermore, the complaint is silent on how the government knows (or why the court should believe) that the auctioned Bataar fossil is composed (in part or in whole) of Prokopi’s March 2010 import. The claim’s only apparent support offered appears to be the uncorroborated assertion: “On or about March 27, 2010, the Defendant Property was imported from Great Britain to Gainesville, Florida.”

Relying on the naked assertion, the government’s complaint argues that Prokopi violated

United States Code, Title 18, Chapter 27, Section 542, which the government quotes in pertinent part:

“Whoever enters or introduces, or attempts to enter or introduce, into the commerce of the United States any imported merchandise by means of any fraudulent or false invoice, declaration, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance, or makes any false statement in any declaration without reasonable cause to believe the truth of such statement, or procures the making of any such false statement as to any matter material thereto without reasonable cause to believe the truth of such statement, whether or not the United States shall or may be deprived of any lawful duties. . . .”

and

United States Code, Title 18 Chapter 27, Section 545, which the government quotes in pertinent part:

“. . . Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law – - Shall be fined under this title or imprisoned not more than 20 years, or both….Merchandise introduced into the United States in violation of this section . . . shall be forfeited to the United States.”

The complaint is equally silent on how it knows (or why the court should believe) that Prokopi knowingly, or without reasonable cause to believe, made false declaration on the March 2010 Customs import documents.

The government’s argument that Bataar fossil was illegally removed from Mongolia (under Mongolian law) appears problematic. The complaint and exhibits hazard guesses that the property was likely removed from Mongolia between 1995 and 2005. As basis for the argument that Mongolia owned the property at the time of removal, it cites a 1924 Soviet-era constitution; a 1924 Soviet-era regulation; a 2001 heritage law; and a 2002 criminal law. The 2001 heritage law and a 2002 criminal law seem difficult to rely upon as the government offers no evidence that vesting of the property was in effect when the property was allegedly removed-rather that it might have been removed when the laws (of unclear directive) were in effect because there were relevant laws and regulations for part of that era.

Reliance on the 1924 Soviet-era constitution and 1924 Soviet-era regulation seems more bizarre. The Mongolian government no longer operates under that constitution or that era’s regulations. Indeed, the Mongolian people have adopted several constitutions since then. Furthermore, the current Mongolian government adopted property rights absent the early communist constitution.

Prokopi’s motion to dismiss and memorandum of supporting law claims:

“However, the Soviet-era constitution and regulations have been superseded by other laws that recognize private property and the wording of the later laws fall short of what is required to establish state ownership under applicable case law. While the Complaint relies upon a 1924 Soviet era constitution to establish state ownership over fossils, it fails to mention that this constitution and its communist era successors were superseded in 1992 by another constitution that recognizes private property rights and which sees the State as a protector—not sole owner—of cultural objects.

In particular, the Government cites Article Three, Section One of the First Mongolian constitution, enacted in 1924 for the proposition that “all assets and resources…shall be under the possession of the people, thus making private property of them prohibited.” (Complaint ¶ 10.) On the other hand, Article Sixteen, Section Three of Mongolia’s post-communist 1992 constitution explicitly protects “[r]ight to fair acquisition, possession and inheritance of movable and immovable property.” 1992 Constitution Art. 16 (3), Tompa Decl.Ex. B. And while “mineral wealth” shall be the “property of the state” nothing is said of paleontological objects found on or in the soil.”

One is left to wonder whether the prosecution believes in property rights-at all. The argument seems to be that the property is forfeitable to the government, at the want of the government, if the government says so.