Black Hills Institute of Geological Research v. U.S. Dept. of Justice, No. 92-2252SD

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before JOHN R. GIBSON, MAGILL, and BEAM; MAGILL
• Citation: 967 F.2d 1237
• Decision Date: 08 July 1992
• Docket Number: No. 92-2252SD
• Parties: BLACK HILLS INSTITUTE OF GEOLOGICAL RESEARCH; and Black Hills Museum of Natural History Foundation, Inc., a non-profit corporation, Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE; Manual Lujan, Jr., Secretary of the Department of Interior; Cheyenne River Sioux Tribe; and South Dakota School of Mines and Technology, Appellees.

Page 1237

967 F.2d 1237 BLACK HILLS INSTITUTE OF GEOLOGICAL RESEARCH; and Black
Hills Museum of Natural History Foundation, Inc.,
a non-profit corporation, Appellants,
v.
UNITED STATES DEPARTMENT OF JUSTICE; Manual Lujan, Jr.,
Secretary of the Department of Interior; Cheyenne
River Sioux Tribe; and South Dakota
School of Mines and
Technology, Appellees. No. 92-2252SD. United States Court of Appeals,
Eighth Circuit. Submitted June 11, 1992.
Decided June 26, 1992.
Rehearing Denied July 8, 1992.

Page 1238

Patrick Duffy and Mark F. Marshall, Rapid City, S.D., for appellants.

Timothy W. Joranko, Eagle Butte, S.D., and Robert A. Mandel, Rapid City, S.D. (Gene N. Lebrun, Rapid City, S.D., appeared on the brief), for appellees.

Before JOHN R. GIBSON, MAGILL, and BEAM, Circuit Judges.

MAGILL, Circuit Judge.

This case concerns the care and custodianship of a 65 million-year-old pile of bones named Sue. Ever since researchers uncovered the mammoth remains of a Tyrannosaurus rex in western South Dakota in August, 1990, the ten tons of bones have sparked a keen ownership battle. Federal agents seized the bones on May 14, 1992, on orders of the United States Attorney for the District of South Dakota as part of an investigation into possible violations of the Antiquities Act. 16 U.S.C. § 433 (1988).

The ownership of these bones is not before this court. ¹ Rather, appellants sought a preliminary injunction requiring the federal government to return the fossil to them for safekeeping until the ownership question is answered. The motion was based on a claim that the fossil is being irreparably damaged in the government's hands because of a lack of expertise in handling the archaeological exhibit.

The district court rejected the motion without addressing the allegations claiming damage to the fossil. The district court framed the question merely as an attempt to regain evidence seized in a criminal investigation. "Stripped of needless verbiage, plaintiffs seek in this civil matter the return of evidence lawfully seized pursuant to the rules of criminal law." Black Hills Institute v. United States, Civ. 92-5070, slip op. at 2 (D.S.D. May 28, 1992).

The district court's denial of the preliminary injunction is on appeal to this court in a separate action. Briefing has been expedited by order of this court. Appellants, meanwhile, have moved under 8th Circuit R. 8A for an order granting custody of the bones to their control pending the appeal of the preliminary injunction. Appellants assert extraordinary relief is required to prevent further damage to this rare paleontological find. For the following reasons, we remand this case to the district court with orders to hold a hearing at the court's earliest possible convenience to determine an appropriate custodian for the dinosaur bones, giving full consideration to the strong public interest in preservation of the fossil.

I.

During a break from a fossil excavation at another site, Sue Hendrickson ² discovered dinosaur bones on Maurice Williams'

Page 1239

ranch. Williams is an Indian, and the land where the fossil was discovered was held in trust by the United States for the sole benefit of Williams. The land is within the boundaries of the Cheyenne River Sioux Indian Reservation. Williams sold the rights to excavate the fossil to the Black Hills Institute of Geological Research.

For 17 days, the Institute excavated the fossil, which is the largest and most complete Tyrannosaurus rex skeleton known to man. The Institute moved the fossil to Hill City, South Dakota, for public display and research. ³ Federal officers, upon order of the United States Attorney for South Dakota, seized the fossil on May 14, 1992. The seizure was based on an alleged violation of the Antiquities Act, which bans the removal of antiquities from federal land. ⁴

Appellants have submitted affidavits to the district court and to this court from experts who have charged that the government's storage of the fossil in a machine shop at the South Dakota School of Mines and Technology is causing irreparable damage to the specimen. Therefore, extraordinary relief is sought.

II.

As an initial matter, we must determine whether this court has jurisdiction to hear this claim for injunctive relief. Appellants did not seek return of the fossil under Fed.R.Crim.Pro. 41(e). Appellants contended a motion under Rule 41(e) possibly could have delayed return of the fossil until the United States Attorney made reasonable efforts at completing the criminal prosecution. Instead, appellants ask this court to exercise its equitable powers to determine custody of the fossil during the pendency of the litigation.

Rule 41(e) is the typical instrument to seek the return of seized property after an indictment has been issued. However, a motion prior to the filing of criminal charges is more properly considered a suit in equity rather than one under the Rules of Criminal Procedure. Matter of Search of 4801 Fyler Avenue, 879 F.2d 385, 387 (8th Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990). Federal courts have recognized an independent cause of action for return of property based on the general equitable jurisdiction of the federal courts. Id.; United States v. Premises Known as 608 Taylor Avenue, 584 F.2d 1297 (3d Cir.1978); Mr. Lucky Messenger Service Inc. v. United States, 587 F.2d 15, 16-17 (7th...