Appeals court sides with Iowan, other 'teen T-Rex' fossil hunters

DIRK LAMMERS

Associated Press Writer

SIOUX FALLS, S.D. (AP) - An appeals court on Thursday upheld a group of fossil hunters' claim to the remains of Tinker the teenage T-rex, meaning the remote South Dakota county where it was discovered is entitled to just 10 percent of any sale proceeds.

In a 2-1 decision, a panel of the 8th U.S. Circuit Court of Appeals affirmed U.S. District Judge Richard Battey's ruling that the paleo-prospectors did not engage in fraud or trespass and that Harding County must abide by the November 2000 lease it tried to rescind.

Eighth Circuit Chief Judge James Loken said in the majority opinion that Ron Frithiof of Austin, Texas, and his partners had no fiduciary duty to disclose to county officials that they had discovered the 65 million-year-old fossil remains years earlier.

"In their arm's-length dealings, he could reasonably expect the County to make its own investigation and protect its interests by inquiring into prior discoveries were that truly 'basic to the transaction,'" Loken wrote.

Ken Barker, a Belle Fourche attorney representing Harding County, said he had not yet discussed the ruling with county officials and could not comment on the decision.

In June 1998, fossil hunter Mark Eatman found some of the dinousaur's remains on land that was either owned by rancher Gary Gilbert or owned by Harding County and leased to Gilbert for grazing.

After Eatman sold his interest in the fossil for $50,000 to a Texas group led by Frithiof, the team entered into a series of prospecting leases and began excavating additional fossils.

Meanwhile, Frithiof began negotiations to sell Tinker - thought to be the first nearly complete skeleton of a juvenile Tyrannosaurus rex ever found - to the Children's Museum of Indianapolis for $8.5 million.

After realizing that Tinker might have been found on county-owned land, Frithiof approached Harding County for a lease.

The 2000 lease, which the appeals court ruled could not be rescinded, stipulates that legal title to the fossil specimen remains with the lessee. It promises that the county will receive 10 percent of the actual selling price of any fossils collected from county property.

After Harding County found out about Tinker's discovery and potential value in May 2003, it tried to rescind the lease and filed an August 2004 lawsuit alleging that Frithiof, Kim Hollrah, of Iowa, and Melody Harrell, of Texas, wrongfully and illegally removed the skeletal remains from county property.

Tinker remains in storage in Pennsylvania under the jurisdiction of a federal bankruptcy court after the man hired to restore the fossils filed for Chapter 7 bankruptcy protection.

Dinosaur experts have determined that Tinker was young based on its unfused backbones and gangly appearance, particularly in the shin and ankle.

But the skeleton's large jaws and massive bone-crushing teeth suggested it ate an adult diet, even though it didn't appear strong enough to wrestle large prey to the ground. Scientists surmised that perhaps one of its parents hunted the meals, and the juvenile T-rex showed up later to munch.

Copyright 2009 The Associated Press.