Wednesday, June 25, 2014

SLAM Dunks Declaratory Judgment Action, Leaving Feds With No Forum to Claim That Ka Nefer Nefer is Stolen

Judge James Loken hinted during oral arguments in January that the federal government's effort to forfeit the Ka Nefer Nefer mummy mask still might have life even if the Eighth Circuit Court denied the government’s appeal. But now the federal government's case is truly dead.

Two weeks ago the court of appeals ruled against federal lawyers, halting their effort to forfeit the mummy mask on procedural grounds. And now district court Judge Henry Autrey has signed off on the St. Louis Art Museum’s (SLAM) notice to dismiss the museum’s separate declaratory judgment action.

Readers will recall that the declaratory judgment case was the initial
SLAM mummy mask case, whereby the museum petitioned to establish exclusive title to the artifact. 
Before the U.S. government filed a forfeiture complaint in March 2011, SLAM started its own civil action for declaratory relief in federal district court, seeking to quiet the title of the 19th Dynasty Egyptian mask. The museum's February 2011 petition stated that the
Museum respectfully seeks declaratory relief to declare the respective rights of the parties with regard to the Mask, specifically that (1) the right of the United States to seek seizure and/or forfeiture pursuant to the provisions of the Tariff Act of 1930 (“Tariff Act”) is foreclosed by the applicable statute of limitations set forth in 19 U.S.C. § 1621, and (2) the provisions of Egyptian Law No. 215 [on the Protection of Antiquities] do not establish the Mask is Egypt's property, nor can the Defendants establish reasonable cause to believe the Mask was 'stolen, smuggled, or clandestinely imported or introduced' into the United States pursuant to 19 U.S.C. § 1595a.
During oral arguments about the forfeiture case, the Eighth Circuit suggested that the government could still argue the forfeiture claim as a defense in the declaratory judgment action. But with SLAM’s voluntarily withdrawal of the declaratory judgment suit last week, federal authorities are now left with no forum to argue their claim that the mask is stolen property that cannot be owned by SLAM.

Federal attorneys told the court of appeals earlier this year, "It was the museum that precipitated a judicial intervention by filing the declaratory judgment, explaining ""Our preference was to reach a mediated solution to this dispute ...."  But SLAM has now beaten the forfeiture case and, predictably, the institution has no interest arguing title.

What’s next? Perhaps nothing. Statutes of limitations may close the door on several legal alternatives. It is difficult to know what federal, state, legal, mediated, or political options are being discussed at this time, if any. But if such discussions are taking place, one would expect that SLAM’s governing structure is being probed as a possible requisite for action by private parties or public authorities (e.g., the Missouri attorney general). The museum is funded by property tax dollars, governed by a politically appointed board, and receives financial assistance from a supporting nonprofit organization. For now, however, the Ka Nefer Nefer case will stay in the afterlife.

By Rick St. Hilaire
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