Tyrannosaurus Sue-- The Extraordinary Saga of the Largest, Most Fought Over T. Rex Ever Found

by Steve Fiffer

  have filed a civil lawsuit to gain possession of her from the institute?

  The fossils that were listed in the indictment included several

  Triceratops, duck-bills, mosasaurs, whales, turtles, a m m o n i t e , crinoids,

  and catfish. They had allegedly been collected illegally from p u b l i c —

  federal, tribal, and state—and private lands in South Dakota, Wyoming,

  Montana, and Nebraska. Some of these fossils had been sold to the

  Smithsonian Institution and the Field Museum. Such illegal activity

  dated back to 1983, the indictment charged. A few examples:

  In 1984 and 1985, "principals, agents, or employees" of the insti-

  tute allegedly went on U.S. Forest Service land—Gallatin National

  Forest—in Montana, and collected fossil remains of crinoids.

  In 1989, the Larson brothers allegedly went on Standing Rock

  Sioux Reservation land near Corson, South Dakota, and col-

  lected fossil remains of a Triceratops.

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  TYRANNOSAURUS S U E

  In 1983, "employees or agents" of the institute allegedly went on

  private lands near Lantry, South Dakota, and obtained the fos-

  sil remains of various a m m o n i t e s without the permission of the

  owner.

  The Larsons had long maintained that they never knowingly engaged

  in the illegal collection, purchase, or sale of fossils; like Harvard's Dr.

  Jenkins, they didn't know if they were collecting on federal, state, or trib-

  al land subject to restrictions. The government didn't believe this. The

  indictment charged that the defendants were adept at reading maps. As

  part of the conspiracy, however, the defendants and their coconspirators

  "would feign ignorance of property boundaries and property ownership

  in places they were illegally collecting fossils." In June 1989, for example,

  Peter Larson and Sue Hendrickson allegedly met with an Amoco employ-

  ee near Wamsutter, Wyoming. This employee showed them maps that

  identified the location of BLM and private lands in the area. "Thereafter,"

  the government alleged, "Peter Larson and Sue Hendrickson collected

  fossil remains, including a turtle from lands that were clearly marked as

  Bureau of Land Management lands on the m a p shown to them."

  T h e conspiracy was alleged to have extended beyond fossils person-

  ally collected by institute personnel: "The defendants and coconspira-

  tors w h e n purchasing fossils from other collectors would deliberately

  avoid gaining information regarding the location and details of illegal

  collection when they knew or suspected that the fossils were illegally

  collected."

  T h e defendants' deviousness went beyond feigning ignorance.

  According to the indictment, "when dealing with others, [the defen-

  dants] would emphasize the educational and scientific benefits to be

  derived from their fossil-related activities and minimize or conceal the

  commercial benefit and personal economic gain to themselves." In 1988,

  for example, Larson allegedly collected the remains of a mastodon,

  camel, and three-toed horse from private land in Nebraska "by giving

  the landowners the false impression that the items were being collected

  for donation to universities and museums."

  In addition to naive landowners, the defendants d u p e d the govern-

  m e n t , universities, foreign corporations and m u s e u m s , according to the

  government:

  Y O U C A N I N D I C T A H A M S A N D W I C H

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  Item: In 1987, the institute partners had imported a baleen

  whale fossil from Peru and "entered it into the commerce of the

  United States." They did so by means of a "false and fraudulent

  declaration [that] . . . the whale was of scientific value only a n d

  no commercial value," when they well knew that the whale was

  of "domestic commercial value" in excess of $10,000.

  Item: In 1992 (during the U.S. attorney's investigation), a com-

  pany in Okayama, Japan, that was developing a natural history

  m u s e u m arranged to purchase a Triceratops skull from the insti-

  tute for $125,000. O n e of the purchaser's requirements was that

  the institute issue a certificate that the fossil was excavated from

  private land and was, therefore, commercially tradable. T h e

  institute issued such a certificate despite the fact that the fossil

  was excavated from Sharkey Williams's land "held in trust by

  the United States for the Cheyenne River Sioux tribe." This was

  the specimen the institute was digging up on the property of

  Maurice Williams's brother when Sue was found.

  The exhaustive investigation of the Larsons uncovered several alleged

  customs-related violations as well. Peter Larson was accused of failing to

  declare $31,700 in travelers checks carried from Japan to the United States.

  He was also charged with taking $15,000 in cash from Hill City to Peru

  without filling out the required United States Customs forms. The institute

  was also accused of knowingly undervaluing two fossil shipments to Japan.

  Finally, the U.S. attorney did not forget Neal Larson's desperate, pre-

  raid attempt to change the dates on boxes of fossils. This, said C o u n t

  XXXVII, was obstruction of justice. Another count accused both of the

  Larsons and Farrar with concealing or failing to produce records the

  government had subpoenaed.

  The defendants were served the indictments on November 23, but

  they were not arrested. They were to be arraigned on December 15.

  Duffy, w h o represented the Larsons, Farrar, Wentz, a n d the institute,

  said his clients would plead not guilty. He d e m e a n e d the prosecution.

  "In this country you can indict a h a m sandwich," he said.

  As promised, at the appointed time the defendants pleaded not

  guilty to all charges. But December 15 was not without its surprise.

  1 5 0 TYRANNOSAURUS S U E

  Purely by chance, on the same day the Larsons were arraigned, the

  Eighth Circuit ruled on the appeal of Judge Battey's decision that had

  denied the institute ownership (and possession) of Sue.

  Peter Larson held his breath as he waited for Duffy to relay the

  court's opinion. Christmas was only ten days away. The U.S. attorney

  had already filled his stocking with fossil fuel (coal). The Eighth Circuit

  could go a long way to making this a happy holiday—in spite of the

  indictments—if it ruled that Sue should be h o m e for Christmas.

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  U N D E R W A Y

  "Five million dollars."

  Larson knew that the top paleontologists from several

  museums had visited Sotheby's before the auction to observe

  the condition of Sue's bones.

  "Damn," he said. "They must think we did a terrific job

  with her." Maybe there was still a chance.

  If a dinosaur falls on the land and nobody sees it, is it still a dinosaur?

  Judge Magill said the Eighth Circuit had to make the following

  decision: "Whether the fossil was personal property or land before

  Black Hills excavated it." As federal statutes regulated Williams's p r o p -

  erty, the court looked to Congress for a definition of "land." Finding no

/>   applicable definition, Magill, like Battey, turned to South Dakota p r o p -

  erty law for guidance. He concluded:

  We hold that the fossil was "land." . . . Sue Hendrickson found

  the fossil e m b e d d e d in the land. Under South Dakota law, the

  fossil was an "ingredient" comprising part of the "solid materi-

  al of the earth." It was a c o m p o n e n t part of Williams's land just

  like the soil, the rocks, and whatever other naturally occurring

  materials make up the earth of the r a n c h . . . . That the fossil was

  once a dinosaur which walked on the surface of the earth and

  that part of the fossil was p r o t r u d i n g from the ground when

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  1 5 2 TYRANNOSAURUS S U E

  Hendrickson discovered it are irrelevant. The salient point is

  that the fossil had for millions of years been an "ingredient" of

  the earth that the United States holds in trust for Williams. The

  case might very well be different had s o m e o n e found the fossil

  elsewhere and buried it in Williams's land or somehow inad-

  vertently left it there. Here, however, a Tyrannosaurus rex died

  s o m e 65 million years ago on what is n o w Indian trust land and

  its fossilized remains gradually became incorporated into that

  land. . . . We hold that the United States holds Sue in trust for

  Williams.

  "What a vicious bit of irony that this decision comes on the day they

  [the Larsons] are arraigned on 39 counts," said Duffy. The institute

  would appeal the decision to the United States Supreme Court, he said.

  Judge Battey set the criminal trial for February 22,1994. It began on

  January 10, 1995. The 13 m o n t h s following the arraignment were filled

  with public recriminations, private negotiations, and motion upon

  m o t i o n .

  T h e institute fired the first shot. On January 6, 1994, three weeks

  after the arraignment, the Larson brothers each filed motions asking

  Judge Battey to recuse himself (step down) from the trial. They argued

  that his c o m m e n t s d u r i n g the custody hearing m o n t h s earlier suggest-

  ed that he favored the prosecution and already believed the defendants

  guilty. In particular, the Larsons cited the judge's remarks that they had

  probably obstructed justice.

  The government fired back the very next day. Assistant U.S.

  Attorney Zuercher filed a m o t i o n to disqualify Duffy from the trial.

  Zuercher asserted that Duffy had a conflict of interest because earlier in

  the case he represented other defendants and witnesses. Zuercher want-

  ed Gary Colbath, w h o represented Sue Hendrickson, disqualified as

  well. Colbath was n o w representing the institute's Terry Wentz. The

  Larsons were furious. Peter Larson argued that the government was

  attempting to deny h i m his Sixth A m e n d m e n t right to the attorney of

  his choice. Zuercher responded that the right to choose one's own attor-

  ney is not absolute.

  Judge Battey refused to step d o w n a n d refused to disqualify Duffy.

  Privately, s o m e of Larson's supporters were disappointed that Duffy

  N E G O T I A T I O N S A R E U N D E R W A Y 1 5 3

  would remain. Hendrickson a n d others thought Duffy might not be the

  best lawyer for the task and that, at the very least, he needed some help

  from more seasoned practitioners. They reasoned that he had enjoyed

  little success to date and had alienated the government and the judge

  with several public p r o n o u n c e m e n t s . Bill M a t h e r s , a friend of

  Hendrickson, had found a p r o m i n e n t Washington, D C , law firm that

  was apparently willing to undertake the defense pro b o n o publico ("for

  the good of the public"—at no charge to the client). "There were a lot

  of excellent attorneys w h o were outraged by the government's behav-

  ior," says Hendrickson. She believes that famous defense lawyer Gerry

  Spence might have been persuaded to help with the case if Larson had

  given permission to pursue him.

  But Duffy didn't seem to be interested in outside assistance, and the

  intensely loyal Larson was not about to remove him. "Pat a n d I have

  been in this together since the beginning," he told the Journal's Harlan.

  "I think he's the only one w h o can adequately defend me."

  In mid-February, Duffy went back to court—this time in connec-

  tion with the civil proceedings for possession of Sue. As the Supreme

  Court was u n d e r no obligation to hear an appeal and the odds of the

  court overturning the Eighth Circuit were slim anyway, Duffy decided

  that the time was right to get something in return for Sue. He therefore

  filed a mechanic's lien on the fossil. Such liens are generally filed by

  workmen w h o have not been paid for their labor on a piece of proper-

  ty. The institute's lien was for $209,000—about $35 per h o u r for 5630

  hours spent finding, excavating, and preparing Sue. This case was even-

  tually dismissed. So, too, was the Cheyenne River Sioux's suit for the T.

  rex in tribal court, bringing Williams o n e step closer to gaining Sue.

  As the s u m m e r wore on, so, too, did pretrial m o t i o n s in the crimi-

  nal case. "Feds Want Fossil Trial in Aberdeen," a n n o u n c e d the Journal on

  July 27. "Due to both the volume a n d nature of the publicity in this case,

  the United States argues that it would be difficult, if not impossible, to

  secure an unbiased panel of jurors in the Western Division," said

  Zuercher and Mandel. The Western Division included Rapid City, h o m e

  of the Journal, which by the prosecutors' count had r u n at least 135 news

  stories about the case in the 26 m o n t h s since the seizure. An exhibit

  accompanying the m o t i o n included editorials and letters to the editor

  that criticized the prosecutors' handling of the case.

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  TYRANNOSAURUS S U E

  Duffy saw the motion as another "misuse of prosecutorial power." The

  prosecution had estimated that the trial could take as long as three

  months. A move to Aberdeen, 300 miles to the northeast, would add

  $100,000 to the cost of the defense, said Larson's lawyer. Among other

  things, the move would necessitate getting motel rooms for half a dozen

  attorneys, an equal n u m b e r of support staff, and the defendants. "It would

  stretch our supply lines to the breaking point," Duffy told the Journal.

  "The prospect of living out of a motel in Aberdeen for ten weeks

  didn't exactly excite me," Assistant U.S. Attorney Mandel would later say.

  "It's not Honolulu." But, Mandel explained, the government truly feared

  that it would have a difficult time finding jurors w h o hadn't been influ-

  enced by the local press's coverage of the story. He noted that his office

  rarely spoke to Journal reporters and those reporters rarely called his

  office; as a result Duffy was often able to "spin" his side of the story with-

  out rebuttal.

  In the days that followed the filing, the prosecutors may have want-

  ed to add two m o r e Journal pieces to their exhibit. " O p e n - m i n d e d peo-

  ple in the Rapid City area should be insulted," began an editorial in the

  paper titled "Trial Should Stay Here."
T h e editorial noted that many of

  the 135 articles

  focused primarily on the government's confiscation of . . .

  Sue—even t h o u g h n o n e of the charges involve Sue. The impli-

  cation is that the Journal's coverage of the case has already con-

  vinced most people here that the accused are innocent. This is

  a d u b i o u s claim But even if it were true that potential jurors

  are already presuming the defendants' innocence, what's wrong

  with that? Isn't that what juries are supposed to do, to presume

  innocence a n d be convinced of guilt?

  In a h u m o r o u s c o l u m n a few days later, Harlan observed, "Rapid

  City's soft on crime reputation is h u r t i n g o u r economy. For evidence

  look no further than that . . . prosecutors asked the judge to move the

  t r i a l . . . to Aberdeen." He continued:

  Normally, this is the p a r a g r a p h where I would explain what

  the . . . trial is about, b u t apparently I don't have to do that.

  N E G O T I A T I O N S A R E U N D E R W A Y 1 5 5

  T h e feds say the fossil case has received so m u c h publicity that

  everyone in Rapid City n o t only knows a b o u t it, they already

  have an opinion a b o u t i t — n a m e l y that the defendants are n o t

  guilty.. . .

  Which brings me back to m o n e y and why Rapid City needs

  to change its permissive image.

  Justice D e p a r t m e n t officials won't say how m u c h they have

  already spent in their three-year prosecution . . . but a total well

  into seven figures wouldn't surprise m e . After all, investigators

  have been to Japan, South America, a n d Europe.

  The trial itself... could last for months. It could involve wit-

  nesses from all over the country—including high-salaried gov-

  ernment witnesses on lucrative per diems. The lunch trade alone

  could be worth thousands, and then there's dinner, motels, and

  legal pads.

  Heck, this case is the economic development equivalent of

  an Airstream rally.

  The economic development of Hill City remained on hold d u r i n g

  this period. Some tourists visited the institute, but the lunch trade hard-

  ly was worth thousands. W h e n Larson wasn't in the field, he was happy

  to show these visitors Stan's bones and Sue's skull. Not her real skull,

  but a bronze bust sculpted 1 : 8 scale by Joe T i p p m a n , an artist from