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Tyrannosaur saved by the T.R.O.—for now

by Donald Prothero, May 23 2012

The Mongolian tyrannosaur specimen that was to be auctioned off on May 20.

The buzz was going back and forth among my paleontologist colleagues for weeks: an important tyrannosaur skeleton (Tarbosaurus bataar) that had been poached from Mongolia was scheduled to auctioned off on May 20 in New York City. We paleontologists were all outraged, and spent days signing online petitions, blogging, and sending letters and emails to the appropriate parties, but the tiny scientific community of vertebrate paleontologists in the U.S. (no more than 2000 people) don’t hold any real positions of power beyond a handful of museum curator positions and top professorships. But our activity got the attention of the Mongolian government, and they sent formal letters of protest to the auction house and the American government. All the emails and blog posts were full of anger and despair that such blatant theft could be rewarded with a million-dollar sale. Then, just hours before the auction was to start, a Texas judge issued a Temporary Restraining Order, and it appeared that the the fate of the Mongolian tyrannosaur was put on hold. But the auction house went ahead with the sale anyway, getting a final bid over over $1 million, and arguing that the Texas judge has no jurisdiction over a New York auction house. This occurred, even as the attorney for the Mongolian government was in the auction room with the Texas judge on his cell phone, trying to make himself heard and to get anyone to listen to the judge. The sale went on pending resolution of legal issues, so now it is in limbo for a while until this could be sorted out.

This story highlights a much bigger problem that most people never hear about: the huge international market in stolen fossils and antiquities. Bit by bit, some governments are becoming better at protecting their national treasures, but the poachers and smugglers are always much better funded and quicker than even Interpol. Not only is there a big black-market trade in stolen artwork and artifacts, but the market in natural objects is equally brazen and profitable. The stories I’ve heard just want to make you cry! Now that all five species of rhinoceros are nearly extinct in the wild, mounted rhino heads in older natural history museums all over Europe have been stolen or defaced just for their valuable rhinoceros horn (worth more than cocaine or gold by the ounce, all because “traditional Chinese medicine” believe rhino horn reduces fever). Famous fossil localities in protected national parks all over the world are brazenly poached by thieves, destroying not only most of the fossils but ruining the locality for its scientific value as well. Museum research collections and even specimens on public display with security guards and video cameras protecting them are stolen or damaged by thieves. One-of-a-kind fossils that are certainly new species and genera and have the potential to revolutionize our understanding of life’s history are seen briefly and then end up on some rich person’s living room. (Lately, one of the biggest problems is the fad among rich Hollywood celebrities like Nicholas Cage and Leonardo di Caprio to have their own dinosaur in their living room).  Even above-board organizations like some major auction houses and the more reputable fossil dealers have to be careful of poached specimens with fraudulent locality data hiding the illegality of their collection. I’ve heard the horror stories from my colleagues who had the proper permits and found an important bone bed on Federal land, only to come back a few days later and someone had plundered the best material and left the rest in broken piles, hacked out of the ground with no attempt to protect the fossil in a jacket—or record the location and stratigraphic horizon of the specimen, which is a big part of its scientific value. It’s common practice now to bury your excavation and hide it once you leave so this doesn’t happen, and I’ve had museums ask me to not publish my GPS coordinates of paleomagnetic sites that also might give away locations of fossil localities. My paleontologist friends in the fossil-rich National Parks are constantly having to spend more and more time planning on how to prevent poaching, and less time doing the science they are better qualified to do. The situation on private land is even messier: although it is usually legal to collect on most privately-held ranches with the consent of the landowner, the story of the tyrannosaur named “Sue” showed that handshake agreements, and disputes over where the specimen was found, and unclear property rights can make those specimens a legal nightmare.

In fact, the famous story of “Sue” is one of the reasons the problem has become so egregious. Thanks to the $8 million bid the specimen fetched so that it would end up on display in Chicago’s Field Museum, every commercial collector is now more motivated than ever to bend the rules for a big payout. (Never mind the fact that no fossil since has gotten even close to that price—the tyrannosaur that was auctioned last Sunday fetched just over $1 million, much less than the auction house had hoped). And the Sue story also put museums in a “Catch 22″ situation: they do not have the money to try to bid on these scientifically important specimens unless they get huge funding from rich sponsors (as did Sue, when McDonalds, Disney Corporation and the California State Universities chipped in); they don’t want to bid on specimens with questionable provenience since the specimen is probably poached and illegal, encouraging the lawbreakers; yet they want to make their best effort to keep scientifically important specimens in the public domain, where they can be studied and researched and yield their secrets, and eventually put on display for the public to see. I have many good friends in the commercial collector community. Some, like my old buddy Henry Galiano, are also a publishing scientists; Henry is very conscientious about his merchandise, and is often brought in as an expert to appraise the value of specimens, or to adjudicate whether their claims of legal collection are valid or not. Others, like Peter Larson (discoverer of “Sue”) and his buddies at Black Hills Institute in South Dakota, are notorious for selling incredible specimens of dinosaurs and marine reptiles with great scientific value to rich individuals. Larson has gone to jail for some of his many offenses of illegal poaching and falsifying records. Then there are the specimens that are ethically in a gray area. The big fuss over the spectacular complete specimen of the adapid primate Darwinius last year (which turned out to be a bust; it’s closer to lemurs than it is to us or other anthropoids) was clouded by the fact that the specimen was hiding for 20 years in a private collection with big questions of how it had been obtained. It would have never seen the light of day if normal black-market activities had prevailed.

Paleontologists tear out their hair as every month another high-brow auction house catering to rich people and corporations sells off many scientifically important fossils, but the story of the Mongolian tyrannosaur brings all these issues into sharp focus. The issue appeared on the public radar only a few weeks ago, and set off alarms all over the paleontological community. It is an 80% complete skeleton of the tyrannosaur relative Tarbosaurus bataar, which is extremely rare and scientifically important, and known only from a few localities in the Nemegt Formation in a small area of Mongolia. The auction house kept calling it “Tyrannosaurus” to enhance interest and its value, but it is not in the same genus or species as Tyrannosaurus rex, known only from Montana. (The name of the vendor, Heritage Auctions, is another cruel irony, since they profit by selling off the public heritage of other countries to the highest bidder). When it caught the attention of paleontologists, they started email and petition campaigns to bring attention to the illegality of the sale. Although the U.S. has no laws restricting the import of such specimens from foreign countries, both Mongolia and China have laws forbidding the export of any fossils from their countries, so any Chinese or Mongolian specimens you see on the public market are illegally obtained. The auction house claims the specimen is from a reputable source and legally obtained from “Central Asia”. That is an impossibility, since even they admit it came from the Gobi Desert, which lies entirely within Mongolia. As Dr. Mark Norell, Chairman of Paleontology at the American Museum of Natural History in New York (and an expert on Mongolian dinosaurs) said it:

It is with great concern that I see Mongolian dinosaur materials listed in the upcoming (May 20) Heritage Auctions Natural History catalogue. For the last 22 years I have excavated specimens Mongolia in conjunction with the Mongolian Academy of Sciences. I have been an author on over 75 scientific papers describing these important specimens. Unfortunately, in my years in the desert I have witnessed ever increasing illegal looting of dinosaur sites, including some of my own excavations. These extremely important fossils are now appearing on the international market. In the current catalogue Lot 49317 (a skull of Saichania) and Lot 49315 (a mounted Tarbosaurus skeleton) clearly were excavated in Mongolia as this is the only locality in the world where these dinosaurs are known. The copy listed in the catalogue, while not mentioning Mongolia specifically (the locality is listed as Central Asia) repeatedly makes reference to the Gobi Desert and to the fact that other specimens of dinosaurs were collected in Mongolia. As someone who is intimately familiar with these faunas, these specimens were undoubtedly looted from Mongolia. There is no legal mechanism (nor has there been for over 50 years) to remove vertebrate fossil material from Mongolia. These specimens are the patrimony of the Mongolian people and should be in a museum in Mongolia. As a professional paleontologist, am appalled that these illegally collected specimens (with no associated documents regarding provenance) are being sold at auction.

Then paleontologists in Mongolia also sent letters of protest, including this missive by Dr. Bolortsetseg Minjin of the Mongolian Academy of Sciences on behalf of the President of Mongolia:

I am writing you at the request of Elbegdorj Tsakhia, the President of Mongolia. He has asked me to inquire on the country of origin for the specimen of Tyannosaurus (aslo known asTarbosaurusbataar (lot 49315) which is scheduled to be auctioned by your company this Sunday, May 20, 2012. I am the director of the Institute for the Study of Mongolian Dinosaurs and also serve as the New York representative of the Mongolian Academy of Sciences. Based on our experience in the studying the collecting of Mongolian dinosaurs, and on the information provided by your company with other specimens to be auctioned this Sunday, we strongly suspect that the Tyrannosaurus specimen, as well as several others you intend to auction, came from Mongolia.

Mongolian law prohibits the export of fossil specimens, and if this specimen did in fact come from Mongolia, we we strongly urge you not to auction this specimen because it would then have been acquired and exported illegally. In fact, information on your website indicates that two of the tyrannosaur teeth (lots 49318, 49320) came from the Nemegt Formation, which is only exposed in Mongolia. Thus these specimens were acquired and exported illegally. We also strongly suspect that the ankylosaurus skull (lot 49317) came from Mongolia, and the troodontid may have come from Mongolia as well (lot 49318).

The auctioning of such specimens fuels the illegal fossil trade and must be stopped. If you could provide detailed information on the provenance(s) of these specimens, I will then pass on this information to the President of Mongolia. I strongly urge you not to auction the two, illegally exported tyrannosaur teeth from Mongolia. I strongly urge you not to auction the other specimens we have indicated until their legality is fully resolved. Even if the owner indicates that they did not come from Mongolia, we suggest that you investigate this matter closely as sometimes collectors falsify information or documents to make illegal specimens appear “legal”. In the meantime, the best approach would be an open dialogue with the government of Mongolia and other interested parties in order to find an acceptable resolution to this problem. If it is eventually determined that these specimens did not come from Mongolia, it would be prudent for Heritage Auctions to consult the laws of the country of origin because many countries now prohibit the export or sale of such specimens (China is one example). Thank you for your prompt attention in this matter.

Yet the auction house was determined to go ahead with their ethically-challenged specimens and make their profit. In response to the international pressure, Greg Rohan, President of Heritage Auctions wrote:

The opening statement in this petition is false and reckless. There is no evidence that we have seen regarding where the fossils were collected, or that they were collected illegally. We appreciate your concerns relating to the Tarbosaurus but it is our conclusion that no impropriety exists with regards to its sale at auction. You should all be aware that this auction has been publicicized broadly for 4 weeks and the Mongolian Governments request issued today, less than 48 hours before the auction is unreasonable and inappropriate. We have no reason to believe that any laws enforced by the United States have been violated and we are unaware that Mongolian law would have prevented export from Mongolia. Mongolia won its independence in 1921 and this specimen is obviously quite a bit older than that. Further, we are not aware of any treaty between the United States and Mongolia which would prevent the import into the United States and are equally unaware of any prohibition of export, particularly since Mongolia has not produced any factual or legal document supporting a possible claim. We have asked Mongolia if they had failed to tell us of a known prohibition preventing auction, and so far they have not. Our consignor is an individial with a good reputation and he has warrantied in writing to us that he holds clear title to the specimen.

As a reply, it’s one of the lamest imaginable. They refuse to be specific about where the specimen was found, and claim that their source is reputable, but the scientific evidence is overwhelming that the specimen could only could have come from Mongolia. Their quip about Mongolia’s independence in 1921 and the specimen being geologically much older is irrelevant; what matters is that the Mongolian laws have been place for decades, are very strictly enforced among those who do legitimate collecting and research in Mongolia (all specimens found and borrowed outside Mongolia must eventually be returned), and they themselves admit the specimen was found in 2005. That fact alone makes it an admission of guilt! Yet they have the temerity to suggest that the burden of proof is on their critics! I’m not sure of the laws in this instance, but there’s enough evidence here to suggest that they are knowingly lying about the specimen’s source. I would assume that laws about sale of antiquities are written so that vendors must go the extra mile, do their research and meet the burden of proof, and be cautious about selling materials whose legality is in question, if for no other reason than to protect themselves for liability in selling contraband. And the comment about the auction being announced four weeks ago is also irrelevant. It was only announced to a narrow spectrum of their clientele, and only by accident did sharp-eyed paleontologists who have made it their mission to scour auction listings was it publicized outside the auction house’s regular buyers.

Mongolian citizens even protested outside the New York premises of Heritage Auctions in New York, where the stolen specimens were being sold inside.

So when the T.R.O. was announced and Sunday’s auction began, most of us in the paleontological community thought that justice had prevailed. The auction house was even picketed by Mongolians wishing to draw attention to their sleazy practices! Then we were all surprised when we followed the auction and found out that they sold it off anyway, even with the attorney for the Mongolian government in the room protesting, his cell phone connected to the judge in Texas, as the greedy auctioneers trying to slip the sale by before the law could act. According the press release from the law firm representing Mongolia:

When this particular lot came up for auction today, the Heritage Auctions, Inc. auctioneer read a statement, “The sale of this next lot will be contingent on a satisfactory resolution of a court proceeding dealing with this matter.” At that point, attorney Robert Painter got Judge Carlos Cortez, of the 44th District Court of Dallas County, Texas, who signed the TRO, on his cell phone. Painter stood up at the auction, and stated that the judge was on the telephone and that going forward with the auction, even contingent on the court proceeding, would violate the TRO. Heritage Auctions, Inc. President Greg Rohan rushed toward Painter, refused to speak with Judge Cortez, asked Painter to leave the room and directed that the auction proceed. Painter said, “I am very surprised that Heritage Auctions, Inc. knowingly defied a valid court order, particularly with the judge on the phone, listening and ready to explain his order. It makes me wonder if that Heritage Auctions, Inc. has a similar disregard for the property laws that protect antiquities, like the Tyrannosaurus fossil, that they attempt to auction. I applaud President Elbegdorj for taking swift action to oppose the sale of this important Mongolian national treasure, and to make sure that it is not transferred to anyone until its ownership is verified in court,” said Texas-based Ed Story, Honorary Consul General of Mongolia. “His leadership in protecting the cultural heritage of the Mongolian people was on display again today in New York, thousands of miles away from Mongolia. This is a victory not only for the people of Mongolia who are one step closer to proving the true ownership of this important dinosaur, but also for the important friendship between the people of United States and Mongolia.”

For now, the judge’s T.R.O. puts the final resolution of the auction on hold, and we hope that there will be an opportunity for the Mongolian government and scientists to testify that the specimen is illegal, and get it returned to Mongolia. If the appropriate witnesses are allowed to speak, there will be no problem establishing that the specimen came from Mongolia, and thus it is illegally poached. Heritage Auctions’ President Greg Rohan has already given three mutually contradictory statements in a single day about the fossil’s provenience: 1) It is from Mongolia; 2) It is not from Mongolia; and 3) He doesn’t know where it came from! Even more interesting, in a open court the auctioneer will be forced to reveal the name of the poachers (apparently British, based in Dorset, and clearly not legitimate paleontologists), which should lead to some sort of prosecution or at least bad publicity for these grave robbers (and whomever collaborated with them in Mongolia).

But this is only the tip of the iceberg. Scanning through the rest of the items featured in the auction, there are a lot of others that are of questionable legality, and even for those that are legal, it is a tragedy that they are going to end up as some expensive “art piece” in a rich person’s mansion, rather than in the public domain where their scientific information can be properly studied and published, and where the specimen can enrich the lives of the rest of us who are not rich.

UPDATE: It was just announced that Heritage Auctions has agreed to work with the Mongolian government to establish the origin of the specimen. If they do appoint an expert panel, it should quickly show that the specimen is Mongolian and belongs in its country of origin, and nullify the sale.

ANOTHER UPDATE: An excellent short interview about the issue with Dr. John Long of the L.A. County Natural History Museum.

YET ANOTHER UPDATE: A panel of American, Canadian, and Mongolian paleontological experts on tarbosaurs have concluded unequivocally that the specimen came from the Nemegt Formation of Mongolia. The matrix matches, and there are no other known locations that produce tarbosaurs. The next move is up to the auction company.

11 Responses to “Tyrannosaur saved by the T.R.O.—for now”

  1. Trimegistus says:

    Why is it that even when Mr. Prothero is reporting on a real, serious legal issue, he has to toss in these sub-Marxist grenades about evil rich people and corporations?

    You do yourself and the cause of science no favors by turning everything into an Occupy slogan.

    • Walter says:

      Huh? I didn’t realize criticizing shady — and possibly illegal — business practices was “Marxist.” Your comment says more about your own biases than his.

      • Donald Prothero says:

        It has nothing to do with Marxism. It has everything to do with buyers and sellers who violate the public trust and rape the patrimony of countries just to satisfy their need to own stuff. It is not Marxist to say that there are some objects, and some parklands, that should be preserved for posterity and shared for all our common good, rather than reduced to toys and baubles for the rich.

  2. Alektorophile says:

    As an archaeologist, I am unfortunately quite familiar with destruction by looters of entire archaeological sites. I myself have returned to previously visited sites in Mexico, only to find that in the meantime looters had utterly destroyed them with bulldozers in search of a few pots they could sell on the antiquities market. It just breaks one’s heart to think of all the information lost forever, and as for the looted artifacts themselves, without context even those are practically worthless. Over the years I had a few encounters with collectors, and they usually justify their collecting by claiming that they’re performing a good deed by preserving artifacts for future generations and that those countries the artifacts originated from are incapable of protecting their heritage anyway. What they fail to appreciate is of course the fact that they themselves are the prime cause for the looting, and that as long as collectors in the US or Europe are creating a demand for artifacts, they are also creating the incentives for people in Mexico or Peru to go out looting. The fundamental problem is not an unregulated antiquities or natural history market, but the existence of such a market in the first place. Fossils and artifacts should not simply be viewed as another resource to be exploited, bought and sold for profit. Every object and specimen is potentially unique and irreplaceable, and if not properly excavated, by recording its context, any information it could give us will be lost forever. Not only should the market be outlawed, but trading and collecting should be made less socially acceptable, so that no idiotic movie star will think they need a cool fossil or artifact in their living room. I long for the day when collecting antiquities will be considered as glamorous as drug-dealing and weapons-smuggling! Okay, rant over. Great post as always.

  3. Jerrold Alpern says:

    Actions initiated by countries whose art has been looted have led to the virtual impossibility these days of auctioning any artwork whose provenance is in question. Perhaps this case will result in a similar situation coming to prevail in paleontology.

  4. Heinrich says:

    The remarks on Peter Larson’s conviction are inaccurate – why are you not more thorough in your research?

    Do I sense an agenda being driven? If so, you’re doing a disservice to the laudable aim of raising awareness about the sale of illegally collected specimens.

  5. oldebabe says:

    TXS for this post. An incidence that one (non-archaeologist/non-paleontologist) doesn’t get to hear about often. Is science and scientific endeavors then up for grabs by whoever has the most money? It’s difficult to decide how to feel, i.e. outraged or sad, by both the act of theft and the general attitude towards it.

    It seems to me that some countries (Egypt? Greece?) have endeavored, and succeeded in getting back some of their stolen treasures, so perhaps Mongolia will prevail.

  6. WScott says:

    “…arguing that the Texas judge has no jurisdiction over a New York auction house.”
    I’m curious what is the nexus to Texas? (Sorry.) On the face of it, the auction house would seem to have a point. Why didn’t they involve the New York courts?

    • Donald Prothero says:

      Because the auction house in based in Dallas, so the Mongolian government hired a Texas firm to go after them. See my update, where the auction house has agreed to cooperate with the Mongolian government and let an expert panel review the evidence (which will certainly nullify the sale and return it to Mongolia).