Wednesday, October 10, 2012

Bataar Forfeiture Case Intensifies as Motion to Dismiss is Filed and a Second Dinosaur is Seized

Attorneys representing “commercial paleontologist” Eric Prokopi filed a motion to dismiss last Friday in the case of United States v. One Tyrannosaurus Bataar Skeleton. The United States Attorney's Office for the Southern District of New York seeks to forfeit and return the Bataar skeleton to Mongolia after having prevented its sale at auction this past spring. Prokopi asserts that he labored to assemble the bones and that the skeleton is not stolen, but rightfully his. Meanwhile, a seizure warrant has been issued for another dinosaur skeleton. 

The federal district court in Manhattan recently raised doubts about the government's forfeiture claim, but allowed government prosecutors to file a new verified complaint. In its new claim, filed on September 21, 2012, the government asserts several points in support of its forfeiture action.
First, experts conclude that the dinosaur bones came from the Nemegt Formation within the Gobi Desert in Mongolia. The government's attorneys say that is because "[f]ossilized dinosaur bones found with the Nemegt Formation have a distinctive color to them as a result of the soil composition of Nemegt Formation."

Next, they argue that Mongolian law asserts ownership over cultural heritage, including the dinosaur bones. “Since as early as 1924, when Mongolia became an independent nation, the Government of Mongolia has prohibited the personal or non-state ownership of items of cultural significance, such dinosaur remains, such as the Defendant Property.” The country’s constitution, domestic cultural property protection laws, criminal laws, and a supreme court decree are all cited as bases for arguing that the dinosaur bones were owned by and protected by Mongolia.

Prosecutors further allege that importation documents were clouded. “According to the CBP [U.S. Customs and Border Protection] Entry Form, the Defendant Property [dinosaur] was imported from Great Britain to Gainesville, Florida on or about March 27, 2010. Florida Fossils is listed on the Customs Entry Form as the ultimate consignee. At the time, Florida Fossils was owned by Prokopi. The CBF Entry Form for the Defendant Property contains several misstatements. First, the country of origin for the Defendant Property is erroneously listed as Great Britain rather than Mongolia. Second, the Defendant Property is substantially undervalued. … Third, the Defendant Property is incorrectly described ….”

Additionally, prosecutors claim irregular importation information surrounding the dinosaur skeleton. For example, prosecutors write that it was revealed at a meeting between prosecutors and counsel for the claimant that the dinosaur bones purportedly came to the United States in three shipments, not one. At the July 26, 2012 meeting “[c]ounsel for Prokopi claimed that the Defendant Property was transported into the United States in three separate shipments and not just a single shipment as alleged in the Verified Complaint.” (Emphasis in the original). Meanwhile, a letter from Prokopi’s counsel revealed more information: "the March 2010 import shipment … included only a small portion of the Tyrannosaurus bataar display piece … the March 2010 shipment included the head [of the Defendant Property which] was incorporated into the" dinosaur. "Mr. Prokopi imported two other shipments of various fossils on March 22, 2007 and August 29, 2007, and to the best of his recollection part of one or both of these shipments was incorporated into the" Defendant Property” added the letter from claimant’s counsel.

Irregular importation information is specifically alleged with regard to the March 2007 shipment. Attorneys for the government state:

“The importation paperwork for the March 22, 2007 shipment lists the items being imported as 'fossil specimens' with a declared value of $12,000. On the CBP Entry Form for this shipment, the Country of Origin is listed as Japan.

“In the documents provided by Prokopi's counsel, the UPS Air Waybill for the March 22, 2007 shipment, states that the Country of Origin for the shipment is Mongolia. However, included in the Prokopi Importation Documents is an ‘Additional Information’ form which states that on March 29, 2007 UPS obtained information from Prokopi that the country of origin for the March 22, 2007 shipment is Japan.

“According to CBP records for the March 22, 2007 shipment, the country of origin on the Commercial Invoice submitted to CBP was changed from Mongolia to Japan. Specifically, the Commercial Invoice has a handwritten notation stating ‘IOR is Correct per Eric Prokopi XXX-XXX-XXXX c/o per above.’”

Government lawyers make similar specified claims with regard to the August 2007 import. “The importation paperwork for the August 29, 2007 shipment listed the items being imported as 'fossils' with a declared value of $42,000. On the CBP Entry Form for this shipment, the Country of Origin is listed as Japan,” the prosecutors write.

The government reasons that “[r]egardless whether the Defendant Property came from one or more shipments the importation documents provided by Prokopi contain material misrepresentations.”
Government lawyers add that the claimant’s lawyers at a September 5, 2012 court conference “advised the Court that the Defendant Property was comprised of fossilized material from four international shipments as well as material purchased domestically.           However, the specifics of those shipments were not disclosed except that it was believed some of the international shipments came from Japan.” (Emphasis in the original.)

1911 Saurolophous excavation.  Source: Barnum Brown
The prosecutors then mention other dinosaur skeletons associated with Prokopi.  They describe a Saurolophus skeleton purchased by a gallery in California from Prokopi.  The skeleton failed to sell at auction.  The bones were transported to California on April 24, 2012 and described by Prokopi in an email as having come from Mongolia, says the government lawyers.  The southern district of New York issued a seizure warrant for one Saurolophus Angustirostris Skeleton on September 20, 2012, according to the government's lawyers.  That action came two years after U.S. Homeland Security administratively seized a Microraptor or Fossil Reptile Skeleton in Matrix from Prokopi because of misstatements made on import forms say the prosecutors.  The lawyers write that “rather than being described as ‘Microraptor’ or ‘Fossil Reptile Skeleton in Matrix’ the Microraptor was initially described as ‘sample of craft rock’ on the invoice but then at some point a pen and ink change (the ‘Pen and Ink Change’) was made to the description on said invoice so that it read that the Fossil was a ‘fossil replica.’  According to UPS records, The Pen and Ink Change was made on April 21, 2010 and made because ‘Eric Prokopi called and said contents were a replica fossil mounted in rock with a value of $100.00 USD.’”

Finally, prosecutors say that the "Mongolian Government has advised that Prokopi visited Mongolian in 2008, 2009, 2011 and most recently in 2012, after the filing of the instant forfeiture action. Specifically, the Mongolian Government has advised the United States that it has located a witness in Mongolia who states that during Prokopi's 2009 visit he witnessed Prokopi remove fossil bones from the ground in the Gobi Desert in Mongolia, specifically in the Nemegt Formation.”

Prokopi’s lawyers fired back in their October 5, 2012 motion to dismiss by arguing that the government has a high burden to prove forfeiture.  Moreover, it called the forfeiture action “unprecedented.”  “Fossil collecting is well established, and has been intertwined with paleontology for generations. At least since the fall of Communism, fossils from China, Kazakhstan, Mongolia and Russia have been openly sold on the international market, and have been avidly collected in the United States by both individuals and museums. Yet, as the Government would now have it, all dinosaur fossils of presumed Mongolian origin are stolen property and should be returned to that country,” the lawyers write.

They call into question the viability of the government’s new complaint before the court, writing:

“In particular, the Amended Complaint does not contest: (1) that the Government has failed to publish regulations related to the proper valuation and country of origin of cultural property despite Congressional direction to do so; (2) that neither the U.S. nor Mongolian Governments have published Mongolian laws in English translations so they can be understood by American collectors, dealers and museums; and (3) that there is no evidence that Mongolia itself actually takes active steps to preclude its own citizens from owning fossils. Under the circumstances, the Court should not countenance the Government’s efforts to announce a new policy on the import of fossils through a forfeiture proceeding based primarily upon technical violations of “country of origin” and valuation rules where no such rules have been published and upon foreign laws that are largely unavailable to American citizens and are unclear in both their meaning and application. Instead, Claimant Prokopi’s 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.”

Prokopi’s lawyers criticize the government by saying that “the Government has ‘doubled down’ on its prior claims that the [Tyrannosaurus Bataar] Display Piece ‘could only have come from Mongolia,’ that the Mongolian state owns all fossils that exist within its borders, and that the Display Piece is comprised largely of one specimen. The Government then presents unrelated, incomplete and unverified information concerning other fossils and importations, as well as Prokopi’s travels to Mongolia, in an attempt to utilize innuendo to circumvent the stringent pleading requirements of the rules applicable to forfeiture actions.”

The lawyers complain, “Nowhere does the Government allege that the Government has published country of origin and valuation rules for fossils. Nowhere does the Government allege that Mongolian law has been translated and made available to American collectors, dealers and museums. Nowhere does the Government allege during the relevant period cited in the Amended Complaint that Mongolia enforced its own law at home such that Mongolian citizens are actively precluded from owning, purchasing, selling and exporting fossils, thus confirming any claim by the Mongolian Government that it was the sole owner of all fossils. These deficiencies in the Amended Complaint are fatal to the Government’s claims.”

Prokopi’s lawyers vigorously argue that the Bataar Skeleton was not stolen, particularly where Mongolian law is ambiguous and unenforced.  Moreover, they say that the government is unable to present facts to show that the dinosaur bones were actually in Mongolia, that they were taken without the Mongolian government’s permission, or that Prokopi knew that the component parts of the dinosaur bones were stolen.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: