Sunday, August 19, 2012

Dinosaur Claimant Files Motion to Dismiss in New York Federal Court

Attorneys for Eric Prokopi on Friday filed a motion to dismiss in federal district court in the southern district of New York. The lawyers argue in the case of United States of America v. One Tyrannosaurus Bataar Skeleton that the government cannot seize and forfeit an dinosaur skeleton on both policy and legal grounds. Prokopi is the claimant seeking the return of the Tyrannosaur skeleton, which he assembled.  It was seized by Immigration and Customs Enforcement (ICE) on June 22, 2012.

Courtesy ICE
The matter came to the attention of law enforcement officials after chairman and curator of paleontology at the American Museum of Natural History in New York raised concerns about the piece advertised for sale at an auction. The auction site listed the object as "SUPERB TYRANNOSAURUS SKELETON, Tyrannosaurus bataar, Late Cretaceous, Central Asia." U.S. Attorney Preet Bharara in Manhattan filed a forfeiture action alleging that the import paperwork for the dinosaur bones misstated the country of origin as Great Britain, not Mongolia; undervalued the skeleton at $15,000; and improperly described the bones as fossil reptile heads, a fossil lizard, and other incorrect items. See the June 26, 2012 blog post for additional background.

In their 28 page legal memorandum urging dismissal of the case, the claimant's lawyers set the stage for their argument to the court:

"Eric Prokopi 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. Prokopi thought he had recouped his considerable investment . . . when the Display Piece sold for $1.05 million at Heritage Auctions (“Heritage”) in New York. But then, a media campaign stirred up by academic paleontologists prompted Mongolia’s President to demand that the Display Piece be sent to Mongolia because it 'must have been stolen from there.' Prokopi and Heritage had entered into negotiations with Mongolia’s President in order to settle the dispute, when on June 18, 2012, the United States filed a Civil Forfeiture Complaint in rem (“Complaint”) seeking forfeiture of the Display Piece." (footnotes omitted)

The claimant's August 17, 2012 memorandum of law argues that the government should not set policy regulating dinosaur bones through the courts. The claimant's advocates write that the "Motion to Dismiss should be granted, not only to ensure that the fruits of his labor are rightly returned to him but to encourage the Government to regulate fossil collecting – if at all  – prospectively through the legislative and regulatory process rather than retroactively through this unprecedented forfeiture action."

Additionally, the lawyers contend that Prokopi did not commit any violations of federal import regulations because he did not have notice of U.S. rules regarding how to list the country of origin or value a paleontological object. "Here, Prokopi could have no fair notice of the 'country of origin' or valuation rules for fossils because none exist," the attorneys submit.  They maintain that in "May of 2006, CBP issued a revised Informed Compliance Publication which included guidance on the proper tariff classification of fossils, but failed to issue guidance on how to determine the country of origin or value of fossils or even of archaeological objects. . . . Since no regulatory guidance exists on how to apply this definition, there is no way for an importer of fossils to know how to proceed."

[Sidebar: Where a cultural property importer has a question about the proper tariff classification, country of origin, or even valuation it can be good practice to file a request for a binding U.S. Customs ruling pursuant to 19 C.F.R. 177.  A rulings letter can provide an official interpretation of the law regarding a specific object to be imported.  See the U.S. Customs web site discussing rulings letters.  See also the CROSS database of rulings letters, which which can also help importers of cultural property comply with applicable regulations.]

The claimant's legal counsel further argue that Prokopi did not have fair notice of Mongolian law "because they are not readily available to the general public much less to attorneys who practice in the 'cultural property' field."  Even if he had knowledge of Mongolian law, the lawyers declare that the dinosaur skeleton could not be considered stolen because current Mongolian law does not clearly define fossils to be owned by Mongolia.  The country, moreover, does not enforce its title vesting law, they aver.  In any case, the claimant's attorneys assert that there is no evidence to support that the bones came from Mongolia or were removed from that country without authority. The attorneys argue that the government cannot show that Prokopi knew the Tyrannosaur bones were stolen.

The claimant's lawyers end their memorandum with the following conclusion:

"It may or may not be time to regulate fossil collecting like antiquities collecting, but surely any such regulatory effort should only be accomplished prospectively through the legislative or administrative process rather than retroactively through a forfeiture action prompted by a media frenzy and foreign politics. The Government should not be allowed to seize property based upon obscure foreign laws or unwritten interpretations of 'country of origin' or valuation rules for fossils. Moreover, the Government has not alleged sufficient facts to establish a reasonable basis to believe that it could meet its burden to prove that the Display Piece was 'stolen.'

The claimant seeks to dismiss the government's forfeiture complaint pursuant to the Supplemental Rule for Admiralty or Maritime Claims and Asset Forfeiture Actions G(8)(b)(i) and Federal Rule of Civil Procedure 12(b)(6).

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com