Don’t Fed Me In — What the AAPS Keeps Getting Wrong …

and why the conversation about fossil commerce needs to start over from scratch

As one digs deeper into the national character of the Americans,
one sees that they have sought the value of everything in this world
only in the answer to this single question: how much money will it
bring in? — Alexis de Tocqueville

It is the fundamental contradictatoriness of the United States of America—the
illogical but optimistic notion that you can create a union of individuals in
which every man is king. — Susan Orlean, The Orchid Thief: A True Story
of Beauty and Obsession

The ground is being emptied so that … things can be possessed. This isn’t just
about stewardship. It is an obsession that runs the gamut of our desires.
— Craig Childs, Finders Keepers: A Tale of Archaeological Plunder and Obsession

The Association of Applied Paleontological Sciences, founded in 1978 as the American Association of Paleontological Suppliers, is a trade organization of less than 200 commercial dealers in fossils and minerals from many parts of the world. They are, according to their home page, “a professional association of commercial fossil dealers, collectors, enthusiasts, and academic paleontologists for the purpose of promoting ethical collecting practices and cooperative liaisons with researchers, instructors, curators and exhibit managers in the paleontological academic and museum community.” Literally tens of thousands of other fossil merchants exist online, in physical stores, at pay-to-dig sites, and in other contexts.

            According to a July 2020 update of its membership list, nearly 80% of AAPS members are located in the United States. The “dinosaur” states (Arizona, Colorado, South Dakota, Wyoming, Montana, and Utah) are heavily represented among members (46%), and among those who make up the AAPS executive board, administration, and committees (58%).

            Like most trade organizations of its kind, the AAPS sends out a newsletter and occasional press releases. It publishes a journal (The Journal of Paleontological Sciences) and a periodic supplement (The Paleontograph). The AAPS also sends out fundraising appeals to fund its public-education and, occasionally, lobbying efforts. In June 2020, Fossil News received one of these appeals, which also invited us to renew our membership.

            This year, though, and for the foreseeable future, Fossil News is letting its membership lapse.

            The reason isn’t just that this latest communication from the AAPS is written in what has become the ambiguous and alarmist style of political fundraising appeals, whether you get them from the right or the left, from MoveOn or from the RNC: there is a terrible danger in the land, “they” are about to take something away from you, and you must send money if you want to “protect your rights.” (“Our business and private collecting is under attack,” the AAPS appeal reads.)

            And the reason isn’t that the AAPS has developed the habit of talking rather incessantly about the rights of fossil dealers but has almost nothing to say about their obligations or responsibilities to a wider community of people.

            Yes, the AAPS slogan, “Supporting Paleontology through Ethical Commerce, Education, and Cooperation” is right there on the web page, but what AAPS’s “Commercial Paleontology Code of Ethics” defines as ethical behavior for member merchants is both vague and substantially toothless. In other words, it doesn’t address the real ethical problems in the fossil “industry” today nor does it seem intended to require fossil dealers to operate in a context of obligation to others who aren’t fossil dealers—at least not very seriously. Here are the Code’s ten points:

1. Strive to stay informed of and comply with International, National, State/Provincial and Local regulations pertaining to collecting activities and general business practices.
2. Obtain permission from landowners or governmental authorities to gain access to collecting sites.
3. Assure that all lands, properties, flora and fauna are left without damage to property or ecology as a result of the collecting activities.
4. Require that fossil materials received from outside collectors are obtained in compliance with the above collecting guidelines set forth by the Association.
5. Report to scientific experts any significant discoveries of scientific or public interest.
6. Strive to place specimens of unique scientific interest into responsible hands for study, research and preservation.
7. Make no misrepresentation as to identity, locality, age, formation, repairs or restoration of paleontological specimens.
8. Conform to professional business practices when obtaining and disposing of specimens.
9. Maintain a good credit standing among fellow suppliers of earth science materials.
10. Encourage good relations and cooperation with agencies, institutions, and organizations actively involved in paleontological pursuits.[1]

Fossils for sale at the annual Tucson Gem & Mineral Show. (Used via Creative Commons 3.0 license.)

           That’s a lot of striving and encouraging, neither of which, of course, necessarily means doing. More importantly, though, the AAPS engages in no regular, active monitoring (as far as I know) of adherence to the Code of Ethics among its members, nor does it have an enforcement mechanism (other, one supposes, than canceling someone’s membership).

            Does the AAPS intend for its members to “require” anyone who sells or trades fossils to them to prove that she or he has complied with applicable law, has obtained permission to collect, and has done no damage to property or the environment in obtaining fossil material? If so, how? (Note, too, that damage to “property or ecology” isn’t the only issue; economic and physical harm to human beings is another consequence of some fossil-collecting practices, and such harm is taking place right now in more than a few places in the world.)

            Does this mean that fossil dealers will refuse to sell or buy fossils from Russia, China, Brazil, Morocco, Australia, Myanmar (which still supplies a great deal of the amber for sale in the world, despite serious human-rights issues; see Barrett & Johanson, 2020, and below) or any of the majority of the countries in the world that consider fossils part of their “national patrimony” and make their sale, and sometimes their private possession, illegal? Should AAPS member refuse to participate in any fossil fair or mineral show where there might be fossils or minerals obtained without permission or whose collection violated the law or damaged “property or ecology”?

            And who defines “significant discoveries of scientific or public interest” or “specimens of unique scientific interest”? The dealer who, by definition, has a conflict of interest? Ditto with reporting to scientific experts. How does AAPS know whether this has been done? What action does it take in the event of a violation?

            Finally, what of the many other words and phrases in the Code of Ethics that are left uninterpreted? Anyone who has tried to get a fossil dealer to disclose locality information knows such data are rarely forthcoming, and “make no representation” isn’t the same as “provide full information without being asked.” In response to a specific, precisely phrased inquiry, most dealers will disclose whether a specimen has been restored, reconstructed, recreated, composited, or repaired, but relatively rarely is such information volunteered. What are “professional business practices,” meanwhile (and in which profession)? And what does it mean to “conform” to them?

The mosasaur skull Russell Crowe bought from Leonardo DiCaprio in 2008 for between $30,000 and $35,000.

            The AAPS does indicate that it is in agreement and compliance with the recommendations of the National Academy of Sciences’ Committee on Guidelines for Paleontological Collecting (which Peter Larson, a founding member of AAPS and its president from 1979-1986, helped write). Those recommendations, however, were issued in 1987 (Committee on Guidelines for Paleontological Collecting, 1987): before Sue the T. rex went to auction and before the Field Museum paid $8.36 million for it; before Eric Prokopi was sent to jail for a massive black-market operation that smuggled millions of dollars worth of fossils out of Mongolia; before the intense legal and legislative battle over the ownership of the “Dueling Dinosaurs,” discovered in Montana; before the return of the “Fighting Dinosaurs,” found in the Gobi Desert, to a museum in Ulaanbaatar; before eBay; before “celebrity fossils” began going to big-name Hollywood or tech-world collectors like Nathan Myhrvold,[2] Nicholas Cage, Russell Crowe, Bill Gates, and Leonardo DiCaprio,[3] to corporations for display in their lobbies,[4] or to deep-pocket enthusiasts abroad,[5] all of whom commonly outbid museums for rare and unique specimens (see Helmore, 2019).

            Yes, people have been picking up fossils for literally thousands of years, but more people are doing so all the time, and there can be no question that the increased visibility of the commercial fossil trade has fueled both interest in how much fossils are “worth” economically and the desire to own them. Though private fossil collections once largely housed fossils found by individual collectors, they can now be made up exclusively of fossils purchased online or at vast trade shows. They may come from nearly anywhere in the world and are frequently accompanied by only the vaguest of information about provenance. Fossils have become the new postage stamps.

            As early as 2009, Matthew Carrano, curator of Dinosauria at the Smithsonian Museum of Natural History, told Smithsonian magazine:

In terms of digging for fossils, there are a lot more people than there used to be. Twenty years ago, if you ran into a private or commercial fossil prospector in the field, it was one person or a couple of people. Now, you go to good fossil locations in, say, Wyoming, and you find quarrying operations with maybe 20 people working, and doing a professional job of excavating fossils. (Webster, 2009)

            Ten years later, Carrano was making the same point to BBC News:

With the rate of dinosaur discoveries showing no sign of slowing, [Carrano] says a private find may slip under the radar as “there’s no catalogue or account of them aside from the occasional high-profile example that might make the news. The rest are sold and bought without any publicity and just disappear into private hands, often without science knowing they exist.” (Timmins, 2019)

             Elizabeth Jones, of the Department of Forestry and Environmental Resources, North Carolina State University, updated Carrano’s observation further in 2020:

[T]he number of commercial companies driving the legal, and sometimes illegal, selling of fossils is estimated to have doubled since the 1980s. Not only is the commercialization of fossils increasingly prevalent … some scientists have gone so far as to describe “the battle against heightened commercialization of fossils to be the greatest challenge to paleontology of the twenty-first century” …. To be clear, the commercial collection of fossils is not new. But it is different. Today, commercial fossil collection has changed as the social structure of the paleontological community has changed, giving rise to new motivations, interactions, and justifications of authority over fossil objects among different stakeholders both within the community and along its periphery. (Jones, 2020: 2-3)

            It’s partly because of these realities that the Guidelines for Paleontological Collecting simply don’t reflect the current state of the fossil market,[6] the realities of increased private ownership of fossils, or the proliferation of commercial collectors. The Guidelines’ authors noted that their “recommendations are designed to reduce rather than promote regulation” (Committee on Guidelines for Paleontological Collecting, 1987: 3, emphasis in original). That may have been an appropriate stance at the time, but it isn’t today.

            Among the issues that the AAPS Code does not acknowledge is that harm could ever come from collecting fossils for the purposes of selling them or from the commerce in fossils, and it insists, by implication, that commercial fossil collection is, at worst, neutral in its effects on the field of paleontology and, at best, a helpful and indispensable adjunct to science.

            This last claim is an inescapable AAPS talking point. The Journal of Paleontological Sciences, founded by the AAPS in 2006, hosts a web page entitled “Fossil Specimens Placed in Museums and Universities by Commercial Paleontology.” As of its June 2020 update, the page listed 145 separate donations by “commercial paleontology” of original fossil material to museums across the U.S. as well as in France, England, Scotland, Japan, Canada, Switzerland, Austria, Wales, South Korea, Ireland, The Netherlands, and Taiwan, noting that these gifts are “only the tip of the iceberg” (Association of Applied Paleontological Sciences, 2014/2020).

            In an editorial to Nature in 2007, then-AAPS President Mike Triebold expounded on this claim:[7]

By the 1870s, professional collectors were busy filling museums with dinosaurs and other fossils, by accepting the risks of exploration, discovery and excavation, then selling their discoveries, and in some cases collecting fossils on a contract basis. Visit any number of prestigious institutions and you will see magnificent displays whose very existence is owed to professional collectors. (Triebold, 2007)

            Without contesting the main point—professional and contract collectors absolutely did fill U.S. and European museums with fossils in the second half of the nineteenth century and still do today—Triebold leaves out essential details.

            In his book, Dinosaurs and Indians: Paleontology Resource Dispossession from Sioux Lands, Dr. Lawrence Bradley, professor of Geography/Geology at the University of Nebraska at Omaha, and arguably the country’s foremost expert on the history and present of paleontological exploration and exploitation of indigenous lands, convincingly adduces evidence for the proposition that “fossils were yet another resource dispossessed from unsuspecting and impoverished Native Americans” (2014, 16).

            Writing specifically in the context of Lakota (Sioux) lands in the decades after an 1825 treaty, Bradley argues that a large number of the specimens that built and enriched museums and helped create the careers and reputations of more than a few nineteenth- and twentieth-century paleontologists came from Sioux territory, beginning with the description of a “paleotherium” from an area east of the Black Hills (present day South Dakota) described in 1846 by a medical doctor, Hiram A. Prout (19). Prout obtained the specimen from a friend at a trading post on the Missouri River. News of the find gave rise to a “fossil rush” that brought “a proliferation of scientists exploring throughout Sioux territory and reaping fossils, all without permission of the people who had sovereignty over the territory” (2014, 20). (See, in particular, Bradley’s chapter entitled “Historical Geography of Fossil Dispossession from Sioux Lands, 1847-1899”; and Chew, 2005.)

            “Commercial fossil trading in the United States started with quarrymen in New Jersey selling fossils to Joseph Leidy during the mid-1800s,” Triebold wrote in Nature. True, but Leidy, the “Father of American paleontology,” also had agents in the west. John Evans, who had been authorized and funded by the U.S. Congress to survey the “White Badlands” area; David Dale Owen, the American geologist who conducted the first geological surveys of Indiana, Kentucky, Arkansas, Wisconsin, Iowa and Minnesota; and Thaddeus Culbertson, who was sent to the upper Missouri region by the Smithsonian in 1850 where he collected ammonites, scaphites, fossil turtles, extinct rhinoceros, oreodonts, saber-toothed cats, and many fossil mammals from Sioux lands, a number of which ended up in Leidy’s hands (Leidy specifically acknowledged the collectors Culbertson, Owen, and Prout in his writings; see Bradley, 2014: 10). By 1869, Leidy had named at least eighty-four species of fossil mammals from the Sioux “badlands” (Bradley, 2014: 26).[8]

Some of the “Indian Territory” fossils studied by Joseph Leidy (from his 1873 Contributions to the Extinct Vertebrate Fauna of the Western Territories). In addition to Leidy himself, collectors in the “Mauvaises Terres” included F. V. Hayden, James Van A. Carter, Col. John H. Knight, Dr. Joseph K. Corson, and “a Shoshone indian,” who brought specimens to Carter. Top: Partial skull of Palaeosyops, a brontothere, along with assorted bones of other species. Bottom: Shell of an Eocene pond turtle, Emys wyomingensis (now called Chrysemys) collected near Ft. Bridger, WY, by Hayden in 1870. According to an 1863 treaty, the Ft. Bridger area was within the forty-four-million-acre Eastern Shoshone homeland, but, in 1868, over 70% of that land was taken back, and the Shoshone were restricted to the Wind River Reservation in east central Wyoming.

            The American fur trader, Edwin Thompson Denig, who spent twenty-three years in the “Indian trade” in Sioux country (roughly from 1833 to 1856), wrote prolifically of his experiences with scientists, explorers, and naturalists, including John James Audubon, who came to the area in search of ornithological, paleontological, botanical, geological, ethnological, archaeological, and all manner of other specimens. Denig, whose work was not published until 1961, commented:

At the lower extremity of the Black Hills commences the Mauvaises Terres or Bad Lands…. The hills [of the Mauvaises Terres] are composed of clay and earths of different colors in strata running parallel through it lengthwise. It is in this part of the Sioux country the immense petrified turtles are found, some of which are estimated to weigh two thousand pounds. Many other petrifactions of fish, worms, and shells are also seen, most of which are said to have been submarine. Gigantic fossil remains of animals now extinct have also been discovered here by naturalists and traders. (1961, 6-8).

            The tradition of collecting from indigenous lands continued as other treaties were written, broken, and renegotiated. Ferdinand V. Hayden, hired to “explore Sioux country before [the Indians] become enraged of encroaching white men” (Bradley, 2014: 25, quoting Lanham, 1973: 39), was a major collector, and Thaddeus Culbertson, James Hall, Edward Drinker Cope, Othniel Charles Marsh, and many others either took fossils from treaty lands, paid people to take fossils from treaty lands, or worked on fossils taken from treaty lands (see Bradley, 2014, 25-42 and passim). Marsh also desecrated Indian burial sites and brought human skulls back to the Peabody Museum.

            It may be tempting to consider these late-eighteenth- and early-nineteenth-century collecting practices as “acceptable for the era,” though they were, in fact, generally not acceptable to indigenous people, but it remains important to recognize that they established a precedent that has continued to the present era. Examples include the cases of Sue the T. rex, excavated on contested Cheyenne land; the Dilophosaur found on Navajo land in 1942; the Titanotherium fossils taken from confiscated Sioux territory in South Dakota in 2002 (see Mayor, 2007); and a plesiosaur collected on the Santee Sioux reservation in Nebraska in 2003 (Bradley, 2014, 177-181 and passim). Mayor noted that the sale of Sue in 1997 “spawned a soaring market for spectacular fossils among rich private collectors, leading to increased poaching from reservations and public lands” (2007: 8).

            In 2007, the Nebraska Commission on Indian Affairs attempted to advance legislation covering non-human fossils found on Native American lands (fossils are not included in the 1990 law known as the Native American Graves Protection Act) (Dalton, 2007), though the effort apparently went no further than a proposition. In 2015, the Standing Rock Sioux was the first tribe to establish its own Paleontology Resource Code (Standing Rock Sioux Tribe, 2015).

            Benjamin M. Eagle, fossil preparator for the Standing Rock Sioux Tribe, told Prehistoric Road Trip in 2020 that “There’s been fossil looting here for decades. We hear about rumors of people going to South Dakota to sell fossils that belong to the tribe and even some paleontologists coming to [tribal land] and taking fossils” (Graslie & Gimbel, 2020).[9]

            All of that having been said, no one is disputing either the generosity and scientific interest of many commercial fossil dealers or their contributions to museum-building. The argument, instead, is that such acts do not tell the whole story of the commercial-fossil industry. Not only does commercial digging sometimes interfere directly with scientific research, but focusing solely on the “good actors” obscures the fact that the origins of the “commercial fossil trading” that Triebold cites lie in access to paleontological material from indigenous territory that was treated like many other Indian “goods” at the time: available for trade or sale or, at times, simply free for the taking. If that is the history of the practice of “commercial paleontology,” it isn’t necessarily a proud one.

The ivory tower

The AAPS is committed to ensuring that laws and regulations relevant to fossil collecting or sale aren’t ill-conceived, unfair, or unduly harsh. For a trade organization, that’s a more than reasonable goal. But it isn’t hard to conclude, in reading through AAPS materials over recent years, that the organization’s objective is to do away with all limitations on fossil collecting and selling. Or, in any case, you’ll search in vain if you try to learn what the association believes might be fair, acceptable, and responsible limits on fossil commerce and for-profit collecting.

            Right after the line about the attack on “business and private collecting,” for example, the June 4, 2020 membership appeal segues into a discussion of an example of one of those “attacks”: laws “passed to restrict the sale of many ivory items, including, in some cases, those made of fossil ivory, to stop the illegal trade in elephant ivory”:

The idea behind these laws is that smugglers are importing poached elephant ivory as fossil ivory such as mammoth tusk. Saving the elephants from extinction is a noble cause but many of these laws are being written so as to have much wider consequences.

Ivory confiscated in the New York area and destined for destruction in Central Park in August 2017. Seen here is a small part of the two tons of tusks and carved objects that were pulverized in the “Ivory Crush,” estimated to have represented around 100 elephants—or just over the number believed to be killed by poachers each day.

            Perhaps the point is a picky one, but the language in this brief paragraph is slippery. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), with which U.S. Fish and Wildlife Service rules comply, does not regulate the trade in fossils or extinct animals. (CITES is an agreement among governments to ensure that international trade of endangered and protected wild animals and plants does not occur; it banned the blood ivory trade in 1989. The United States became a party to the Convention on January 14, 1974.)

            Second, the language of the U.S. Endangered Species Act defines “antique ivory” as any ivory over 100 years old and specifically excludes it from prohibitions on the import, export, or sale of ivory, but does not mention mammoth or “fossil ivory.” As a consequence, federal laws in the U.S., and, specifically the laws enforced by the Fish and Wildlife Service, also do not specifically “restrict the sale of fossil [ivory] items,” meaning, presumably, mammoth or mastodon tusks, although “ivory” is a somewhat vague term that can include teeth, tusks, and bone from walrus, sperm and killer whales, narwhals, hippos, and even wart hogs, as well as critically endangered elephants).

            Third, the AAPS statement implies that neither the “noble cause” of “saving the elephants from extinction” nor efforts to reduce smuggling and “ivory laundering” should be considered important enough to interfere with profit. That’s a statement of values, not of fact, and there’s something ethically questionable about arguing that the most important impact of ivory bans is that they make it hard for a comparatively few people to conduct legitimate business. The entire point of laws like the so-called “ivory ban” is to interfere with the incomes of bad actors and to discourage unwanted behavior through the use of economic and legal sanctions.

            In any case, ivory import/export prohibitions are intended to affect the importation and sale of “blood ivory” in the service of the goal of protecting endangered living species. Groups including the NRA, the Knife Rights organization (Knife Rights, 2016), and some commercial fossil dealers, are outraged by this requirement, however, which they consider an unfair constraint on “enterprise.”

            One of the articles that AAPS lists as a resource on its “Fossil Ivory” page is a rant by the editor-in-chief of Ammoland Shooting Sports News, Fredy Riehl, regarding the “draconian law” that prohibits both mammoth and blood ivory and occasioned a seizure of ivory in New York from a “senior citizen jeweler” and a “folk art dealer.” For anyone not inclined to read past the title, he gave his editorial an unambiguous one: “Government Bullies Nail First Victims” (Riehl, 2015).

            Still, it is neither hypothetical nor secret that nefarious dealers label modern ivory as “fossil ivory” in attempts to get around the ban. Dr. Edgard Espinoza, Deputy Director of the National Fish and Wildlife Forensic Laboratory in Ashland, Oregon, confirms that dyeing or staining of illegal ivory is “widely practiced” in smuggling efforts, in part because of a common, though erroneous, belief that fossil ivory can be distinguished solely by color.[10]

“Schreger lines”—chevrons or hatch marks—are one mechanism for distinguishing mammoth ivory from elephant ivory. On the left: a cross-section of mammoth ivory; at right extant elephant ivory. Ivory from other species can also be identified by examining cross-sections. From the website of the U.S. Fish and Wildlife Service’s Forensic Laboratory.

            In 2016, National Geographic reported several cases of illegal ivory being passed off as mammoth ivory, quoting Lucy Vigne, an ivory trade researcher and co-author of a 2014 report commissioned by the nonprofit group Save the Elephants, that “Sellers in Beijing also sometimes try to pass off mammoth ivory as elephant ivory in the store. They can pretend it’s mammoth ivory if they’re pushed” (Actman, 2016). Popular Science in 2019 noted that “evidence already exists that illegal elephant ivory is being intentionally mislabeled as legal mammoth ivory” and cited cases in China as well as the felony conviction of a New York-based antiques dealer who, in 2017, sold “elephant ivory mislabeled as ‘carved mammoth tusks.’” Simon Nemtzov, a wildlife ecologist at the Israel Nature and Parks Authority and Israel’s Scientific Authority for CITES, told Popular Science: “We know there is a trade in mammoth ivory [and] we know that some is being intentionally mislabeled [to hide] elephant ivory.” (Nuwer, 2019).

            Ample evidence exists, then, that mammoth ivory is being used to “launder” blood ivory (see Nuwer, 2019, e.g., as well as Larney, 2016, whose study in Hawai‘i, one of the states that bans mammoth ivory, showed that “ivory from recently poached elephants is regularly smuggled into the United States and sold both in storefronts and online, often disguised as antique, legal ivory.” An investigation by TRAFFIC, a wildlife trade-monitoring non-profit, “found that sellers in China, [Myanmar], Hong Kong and the US were mislabeling elephant ivory as mammoth ivory” (Kramer et al., 2017; Flanagan, 2019). Another investigation in 2018 “tested 109 ‘antique’ ivory products legally purchased from countries all over Europe, including Germany, Ireland and Spain. Using radiocarbon dating, the team found that 75 percent of samples came from after 1947 [and were therefore illegal], some from animals alive in the 2000s” (Collins, 2019).

            Though the AAPS source, Fredy Riehl, claims there is not a “shred” of evidence that bans on mammoth ivory have “saved a single elephant,” the fact is: he simply doesn’t know, nor does the AAPS or anyone else. Virtually no scientific research has been done on this specific point. What is known is that poaching of elephants either remains at previous levels or has increased in the majority of African countries. According to a 2020 study published in Scientific Reports, “For Africa as a whole, poaching did decline for 2011-2018, but the decline was entirely due to Eastern African sites. Our results suggest that poaching for ivory has not diminished across most of Africa since 2011” (Schlossberg et al., 2020). It’s illogical to imagine that 15,000-20,000 elephants continue to be killed each year for some reason other than their ivory, and studies suggest that, when the worldwide price of ivory has increased, or demand has increased, so has the poaching of living elephants.[11]

            These facts alone might justify putting ivory sales under increased scrutiny, or even a ban. No, they are not direct proof that trade in mammoth ivory causes poaching of African elephants, but there is good reason to see a correlation. That’s more than sufficient for a reasonable person to have doubts. And it’s not the same as “not a shred of evidence.”[12]                              

            Perhaps, then, at least some of AAPS’s efforts should be dedicated to unscrupulous traffickers and vendors who have made things tough on virtuous dealers and to the development of strategies for active involvement in curtailing smuggling, laundering, and other illegal activities.

Ice ivory

The National Fish and Wildlife Forensic Laboratory’s Edgard Espinoza explains that wildlife inspectors are deployed at major ports of entry across the nation and are well trained to distinguish extinct from extant species. If a consignment is believed to be illegal, they detain the material and send it to the U.S. Fish and Wildlife Service Forensics Laboratory for analysis. If the material turns out to be legal, it is returned to the owner. If it is not, various scenarios can play out, including “abandonment” of the shipment in question. Such determinations are typically made quickly, though they sometimes do take months, Espinoza acknowledges, if the lab is particularly busy.

            Claims are occasionally made that the ivory ban is unfair because the burden of proving that material is exempt from the ban falls on the possessor of the questioned ivory, but the facts are somewhat different. If the possessor claims the ivory is “antique” but not fossil, then, yes, evidence of the provenance of the item is required, which can include family photographs, letters, or any other documentation that shows that the ivory in question was legally harvested one hundred or more years ago. If the question involves distinguishing fossil from extant material, the U.S. Fish and Wildlife Service Forensics Laboratory does the testing at no charge. According to Espinoza, however, no case has occurred since the ban was enacted in which legitimate mammoth ivory was detained, tested, and then mistakenly certified as illegal modern ivory. That’s an important point.

            Given that fossil dealers are typically not dealing with “antique” ivory but with much older fossil or subfossil material, in any case, the federal requirement barely concerns them. Even if it did, however, what is the nature of the unique and excessive burden that would be placed on their businesses if they were asked to demonstrate the provenance of ivory they bought, sold, or traded? We must carry proof of insurance in our cars when we drive. Someone who adds a story to a house needs a permit; an inspector can stop work or levy fines if the permit isn’t available. No one simply takes air travelers at their word if they say they aren’t bringing weapons onto a plane; they must demonstrate the fact. Proof of American citizenship must be shown by anyone seeking a U.S. passport; no one is required to trust an applicant’s claim to be a citizen without documentation.

            The AAPS is nonetheless absolutely correct when it claims, as it does on its website, that some states (eight, according to the AAPS’s online list) have passed laws that specifically include “mammoth ivory” in prohibitions. (Other states have considered doing so, but most of the draft laws that name “mammoth ivory” have languished in legislative committees for years.) This is the boilerplate paragraph that a number of U.S. jurisdictions have copied into adopted or proposed legislation:

“Ivory” means any tooth or tusk composed of ivory from any animal, including, but not limited to, an elephant, hippopotamus, mammoth, narwhal, walrus, or whale, or any piece thereof, whether raw ivory or worked ivory, or made into, or part of, an ivory product” (emphasis added).

            Most states’ laws, however, specifically exempt “antique” ivory (i.e., over 100 years old), which clearly includes fossil ivory. Where that is not the case, Espinoza blames ignorance—specifically, the misconception that mammoth ivory cannot easily be distinguished from elephant ivory. As early as 1990, in fact, Espinoza co-pioneered a laboratory procedure to differentiate mammoth and mastodon ivories from modern elephant ivory, and his forensics lab won an international award for best research paper when he and his research partner presented their method at the International Association of Forensic Sciences meeting that year. The full report was published in the Journal of the American Institute for Conservation a few years later (Espinoza & Mann, 1993). Espinoza and Mann also prepared the extremely detailed Identification Guide for Ivory and Ivory Substitutes—in use for the last ten years by the U.S. Fish and Wildlife Service Forensics Laboratory. The guide was “developed to give information about a nondestructive and visual means of tentatively distinguishing clearly legal ivory from suspected illegal ivory at ports of entry,” which approach is not meant to take the place of “an examination of the ivory object by a trained scientist … to [positively identify] the species source” (Espinoza & Mann, 2010).

            If it is not difficult to tell legal mammoth ivory from illegal “blood” ivory, then, there’s no real reason beyond hyperbole to stoke fears that mammoth ivory will be erroneously confiscated and, arguably, no reason for blanket state bans on mammoth ivory either. In fact, in October 2017, Republican Senators Dan Sullivan and Lisa Murkowski of Alaska introduced the so-called “Allowing Alaska IVORY Act,” which, among other provisions, would have prohibited individual states from issuing bans on mammoth-ivory products that were produced by Alaskan natives as “an authentic native article of handicrafts or clothing” (“Senate Report,” 2018). As of this writing, the bill has remained on the legislative calendar without further action since December 2018.

            The vast majority of mammoth ivory for sale in the world does not come from indigenous Alaskan craftspeople, however, but rather from large mining operations in Siberia. As Doug Meigs reported in 2016:

Most of the world’s untouched mammoth ivory remains locked in the frozen permafrost of Siberia. When snows melt during the brief Arctic summer (from mid-July to mid-September), riverbanks often reveal prehistoric remains. Warmer summers means the permafrost is thawed longer every year. That means more and more mammoth tusks are protruding from the ground…. Indigenous locals, seasonal tusk hunters, and Russian gangs aggregate the raw tusks in Siberia. Officially, the tusks must be approved for export by the government authorities, but traders (and smugglers) are increasingly taking their purchases directly into mainland China over the land border with Russia, Mongolia, or neighboring countries.

            As much as 90% of this Siberian production, sometimes called “ice ivory,” ends up in China, “which is also the main destination for illegal elephant ivory” (Actman, 2016). Zara Bending of the Centre for Environmental Law at Macquarie University in Sydney, Australia, noted that “[i]mports [of mammoth ivory] to Hong Kong have increased dramatically from fewer than 9 tonnes per year from 2000 to 2003 to an average of 31 tonnes per year from 2007 to 2013. Similarly, one survey found a fourfold increase in mammoth ivory sales in Macau [the “Special Administrative Region” of the People’s Republic of China] between 2004 and 2015” (Bending, 2019).

“Tuskers” at work in the Yakutia Region. Above: To expose fossils, an entire hillside has been gouged out with high-pressure jets of water. Below: A mammoth hunter prepares to transport a tusk. Photos © Amos Chapple from his 2016 investigation, “The Mammoth Pirates,” for RadioFree Europe.

            Siberian mining operations by tusk hunters, or “tuskers,” which are frequently illegal, improvised, and dangerous, can be found throughout the one-million-square-mile Yakutia region in Eastern Russia, but especially alongside waterways. According to Amos Chapple, who spent part of a summer “under cover” with tuskers in 2016, money is what lures bands of impromptu “commercial fossil dealers” to ransack paleontological sites: In an area “where the average salary is less than $500 a month,” tuskers can earn $100,000 in eight days from the mysterious “agents” who roam the region’s towns looking for mammoth ivory to buy.

            Constantly on the run from police and environmental-protection officers, Chapple reported, tuskers rig up gasoline-powered high-pressure hoses designed for fire-fighting to pump water from waterways. With them, they blast vast caves and enormous tunnels into hillsides to expose fossils, leaving behind a ravaged landscape and filling bodies of water with hundreds of tons of silt, which has destroyed fishing and ruined Yakutia’s rivers and lakes. Chapple added, “In status-mad China, mammoth ivory appears to be subject to an economic phenomenon whereby high prices drive increased demand, thus further raising prices. Once sculpted by a master carver [a pair of mammoth tusks] regularly sell for more than $1 million” (Chapple, 2016).

            Quoted in National Geographic, Daniel Fisher, a paleontologist at the University of Michigan who studies woolly mammoths at dig sites in Siberia, confirms the impact on scientists: “Over the years, I’ve seen what I can collect dwindle quite significantly. There’s still important questions to be solved about woolly mammoths. Do we study the tusks and learn something from them, or do we carve them?” (Actman, 2016).

            Once again, however, the AAPS position makes it nearly impossible to grasp the equities fully or to balance interests. If it is true that the mammoth-ivory trade fuels the demand for elephant and other ivory in general;[13] if most of the world’s prehistoric ivory comes from the Siberian permafrost and is frequently smuggled out or excavated under conditions that destroy paleontological or archaeological context and ruin the local environment; if it depends upon black-market trade; and, as many experts have claimed, if it is true that prehistoric ivory trade has become a “‘cynical laundering mechanism for freshly poached elephant ivory’” (Meigs, 2016), perhaps bans that include mammoth ivory exist for other, defensible reasons—and not solely because of an irrational fear that fossil and illegal ivory cannot be distinguished from one another.

            Israel and Kenya, for example, have asked the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to regulate the trade in mammoth ivory (not to block or prohibit it) precisely because “elephant ivory is being sold as mammoth ivory [allowing] traders [to] skirt supervision [and] posing a serious threat to elephants” and because the trade in mammoth ivory “buoys smugglers of elephant ivory” and “has severely damaged the environment as would-be traders dig for skeletons [in Siberia]” (Rinat, 2018). The hope is that such supervision would “make sure intentional mislabeling doesn’t happen so that the mammoth ivory trade doesn’t contribute to laundering illicit ivory” (Actman, 2016) because, as Israel stated in its proposal, “the legal, unregulated trade in mammoth ivory facilitates illegal trade in elephant ivory” (Kukreti, 2019.

            Here is an opportunity for AAPS to lead by joining conservation efforts, endorsing the Kenya/Israel proposal, opposing black-market fossil dealing, supporting a requirement that dealers display provenance documents, and promoting a reasonable standard for the industry rather than simply railing against laws intended to eliminate poaching and the illegal trade of animal parts.[14] But some fossil dealers seem to be having trouble understanding a simple truth: ivory bans aren’t about them.

Forever amber

For decades, but especially in recent years, spectacular fossils found in Burmese amber—including dinosaur tails, birds, small skulls, ammonites, intact lizards, swarms of spiders and insects, and other vertebrate and invertebrate wonders—have excited scientists and the general public alike. A fact that often seems to be a footnote, if it is mentioned at all, is that these fossils are paid for with human suffering and loss of life.

A piece of Burmese amber preserves microscopic filaments from the tail feathers of a dinosaur, one of the first specimens to allow a look at the feathers’ actual structure. © Royal Saskatchewan Museum/ R.C. McKellar.

            Though amber is found in many places around the world, the deposits most commonly tapped for jewelry and science are in the Dominican Republic, the Baltic region,[15] and Myanmar (formerly Burma). Of these, Dominican amber is the youngest, and Burmese amber is the oldest (perhaps 100 million years old, though the fact that amber mines are located in a conflict zone means that scientists have not been able to study and date the exposures accurately).[16] Burmese amber also has the distinction of including bird and dinosaur feathers, bones, small vertebrates, and other paleontological treasures that are uncommon or absent in amber from other areas.

            But the harsh and shocking realities of the Burmese amber market—human-rights abuses, guerrilla warfare, smuggling operations, child labor, environmental destruction, genocide, mining deaths and injuries—are far from unknown.

            According to Joshua Sokol, writing in Science magazine in 2019, the fossils in question

come from conflict-ridden Kachin state in Myanmar…. In Kachin, rival political factions compete for the profit yielded by amber and other natural resources. ‘These commodities are fueling the conflict,’ says Paul Donowitz, the Washington, D.C.–based campaign leader for Myanmar at Global Witness, a nongovernmental organization. ‘They are providing revenue for arms and conflict actors, and the government is launching attacks and killing people and committing human rights abuses to cut off those resources.’ Much of the amber is smuggled into China in a trade that Tengchong officials and traders ballparked at between $725 million and $1 billion in 2015 alone.

            Sokol added:

The amber mines are … a cesspit of human rights and environmental abuses. ‘Poor working conditions are pretty much a trademark in all the mines in Kachin state and environmental regulations, where they exist, are largely ignored,’ says Hannah Hindstrom (a senior campaigner and Myanmar resources expert at NGO Global Witness). Amber is only part of the resource war, and scientists are far from the only people buying it. But it is impossible not to conclude that they are complicit, if not actively involved, in a trade that helps to fund a war.

            According to The Irriwaday, a major independent news source for Myanmar and Southeast Asia, the Myanmar armed forces, the Tatmadaw, launched an offensive in the amber-mining region in 2017:

After a dinosaur tail which is believed to be 99 million years old was found in a piece of amber discovered in Tanai, the Tatmadaw launched attacks … on the pretext of concerns for environmental conservation and the risks of losing state revenue. The Tatmadaw dropped leaflets from airplanes, asking locals along with amber miners to leave the area…. Following the clashes, the Tatmadaw [took] control of the area…. Amber miners run the risk of being shot by soldiers who are watching from outposts built on hills, and stepping on mines planted by both sides…. Though it appears to people outside Tanai that the mines are closed, that is not the case, said local residents. On the ground, the military has built outposts and blocked all the roads leading to the amber and gold mines. But inside the mines, some businessmen who have bribed the military are still operating, locals said. (“Displaced by Clashes,” 2019)

Facing page: Amber prospectors in Kachin State, Myanmar. © The Irrawaddy.

            The Burmese amber trade has been the subject of articles and editorials in the New York Times; The Atlantic; The New Scientist; Time; Science; The Financial Post; the blog of well-known University of Portsmouth (UK) paleontologist and paleoartist, Mark Witton; and even the London-based trade journal, Mining Technology, among other outlets. More than a few scientists, in fact, including David Grimaldi, the curator of amber specimens at the American Museum of Natural History in New York; Brian Brown, the entomology curator at the L.A. County Museum of Natural History; Steve Brusatte, a vertebrate paleontologist at the University of Edinburgh and author of numerous books, including The Rise and Fall of the Dinosaurs; and the co-Editors in Chief of the Journal of Systematic Palaeontology, have made clear that, for ethical reasons, they will no longer support or be involved in activity that promotes amber traffic from Myanmar; Grimaldi went so far as to write a brief letter to New Scientist in June 2019 in which he said “If amber sales are funding bloodshed [in Myanmar], then a strict boycott of Burmese amber is absolutely necessary.”

            In April 2020, the Society for Vertebrate Paleontology announced on its website that it “strongly discourage[d] its members from working on amber collected in or exported from Myanmar since June 2017” (Society for Vertebrate Paleontology, 2020), and, that same month, its Executive Committee sent a letter to the editors of some 300 scientific journals that is worth quoting at length:

One particularly alarming example [of fossils in and from conflict zones] is the so-called ‘Burmese amber’ that contains exquisitely well-preserved fossils trapped in 100-million-year-old (Cretaceous) tree sap from Myanmar…. Where Burmese amber is mined in hazardous conditions, smuggled out of the country, and sold as gemstones, the most disheartening issue is that the recent surge of exciting scientific discoveries, particularly involving vertebrate fossils, has in part fueled the commercial trading of amber. The rarest types of fossils are sought after for exceptionally high prices…. Our understanding is that the Myanmar military has recently seized control of the mining operation [and the offensive] has been condemned by the UN as a genocide and crime against humanity…. SVP regards the problem surrounding Burmese amber to be particularly pressing [and] we do not condone promoting our scientific endeavor at the expense of people facing humanitarian crisis…. In the case of Burmese amber, boycotting its commercial trading altogether, at least until the situation in the country stabilizes, may ultimately be one of the most effective solutions. Journal editors, publishers, and peer referees can also serve as ‘gatekeepers’ to set high ethical standards in our scientific field by only publishing manuscripts on Burmese amber that [was] acquired prior to the recent conflict. We also hope that scientists who study Burmese amber as well as private fossil collectors would exhibit the highest possible level of integrity so as not to encourage a black-market for commercial trading. (Rayfield, Theodor & Polly, 2020)[17]

            Even Chinese celebrity scientist Lida Xing, who has published widely on fossils found in Burmese amber (he told Sokol that he “spends roughly $750,000 on Burmese amber per year”) has acknowledged that the conditions at the mines are “inhuman.” In 2014, he had himself smuggled, in disguise, into the Hukawng Valley to view an amber mine in operation:

According to Xing’s account, the ‘mine’ turned out to be a shanty town of around 3000 tents, each covering a narrow mineshaft up to 10 metres deep. The miners were living in bamboo huts among the shafts. Xing described conditions in the mines as ‘very dangerous, inhuman.’ The miners work with no safety equipment and often die of suffocation or in collapses. (Lawton, 2019)[18]

            But that hasn’t stopped Xing—or others—from continuing to buy amber from Myanmar and otherwise participating in the amber trade. And the justifications for such complicity will be familiar to anyone who knows what so often happens when human-rights considerations clash with the chance for career advancement or profit: The amber will be sold even if scientists don’t buy it (Xing: “If we don’t get a specimen, it probably becomes cheap jewelry around some young girl’s neck”; Sokol, 2019). Other important benefits exist beyond scientific discovery (Jingmai O’Connor of the Chinese Academy of Sciences: “These are the kinds of things that make people excited about science, that make children want to grow up to be scientists”; Joel, 2020). Taking a stand against the atrocities justified by the Burmese amber trade is someone else’s responsibility (Anonymous online commenter: “Fossil amber accounts for only 1% of the demand and would not on its own be creating these conflicts. [19] The jewelry industry should be the first to take a stand”).

            In other words, it isn’t that the sins of the Burmese amber market aren’t known; it’s that they’re widely ignored—and even more widely justified by a sort of “fine people on both sides” logic: “I’ve weighed the ethical questions, and even if my participation in the Burmese amber market takes advantage of a conflict area where no rule of law protects citizens or workers, even if it fuels war and genocide and promotes child labor, and even if I am participating in a black-market Chinese smuggling operation, getting my name on scientific papers or making a profit is the greater good.” That decision is a moral one.

            As paleontologist Steve Brusatte commented to the New York Times, “We scientists need to make our own decisions based on our own ethics and values, and we could use guidance from our professional societies” (Joel, 2020). Some societies have, in fact, provided that guidance, and one organization that could serve such a function among non-scientists is the AAPS, the largest trade group of fossil dealers in the United States. Growing awareness of the human cost of the Burmese amber trade make this a perfect time for the organization to insist that its members do not buy, sell, or trade Burmese amber; do not participate in fairs or businesses where such commerce takes place; and publicly name dealers who refuse to comply.

Showdown at the “Dueling Dinosaurs” corral

Virtually all of what is considered “private land” in the U.S. was originally occupied by long-time residents who predated Europeans (and the United States) by something like fifteen millennia. The land was bought, stolen, taken by force, or extorted from these people, and it was next sold directly into private hands, granted to a state at statehood, or given away to individuals via the various federal Homestead Acts of the second half of the 1800s (about 10% of the total area of the United States was given away for free during that time; most of this previously public land was located west of the Mississippi River). Often, the “surface rights” to this land (in very general terms, what was on the surface of the land) and the “mineral rights” (again, very generally, what existed beneath the surface) were “severed,” meaning that the two categories of rights could be sold or deeded separately. In that case, the owner of the surface rights did not necessarily own the mineral rights and vice-versa. This practice was particularly important in the American West, where there were known to be reserves of coal, petroleum, and other “minerals,” because it protected the government’s access to these resources on into the future.

            In 2016, these rather dry legal distinctions became the subject of a lawsuit over the ownership of (and right to sell) an exceptional specimen discovered in Montana: the “Dueling Dinosaurs,” a twenty-two-foot-long tyrannosaur and a twenty-eight-foot-long ceratopsian that had apparently died in mutual combat.

The “Dueling Dinosaurs” at auction. © Seth Wenig/Science. Inset: Closeup of vertebrae in the ceratopsian’s tail. © Robert Clark/Smithsonian.

            The details that gave rise to the nearly five years of litigation that ensued have been widely reported and repeated, but here’s a summary. In 2006, the “Dueling Dinosaurs” were found by Clayton Phipps and his cousin, Chad O’Connor, on ranch land whose surface rights belonged to Mary Ann and Lige Murray but whose mineral rights were shared with the sons of George Severson, the landowner who had sold the property (including surface rights) to the Murrays in 2005. Each of Severson’s sons ran an extraction company interested in exploiting the coal, oil, and gas that lay beneath the ground. The Murrays, when they acquired the land in question, received one-third of the mineral rights and each of the two Severson brothers held one-third each.

            In 2013, the Murrays attempted to sell the “Dueling Dinosaurs” at auction, setting their minimum price at six million dollars.[20] The auction, organized by the Bonhams auction house in Manhattan, was dedicated solely to fossils and, according to Science magazine, “Nearly 20% of the specimens, ranging from a large Eocene turtle from Wyoming to an Oligocene false saber-toothed cat from South Dakota, were rare and carried auction estimates between $100,000 and $2 million” (Pringle, 2014).

            The Murrays’ partners in the mineral rights, the Severson brothers, objected, claiming that their two-thirds share of the mineral rights entitled them to a portion of the proceeds from sales of fossils found on the land.

            The original case was heard in the U.S. District Court for Montana and, in 2016, the court issued a finding that the fossils belonged solely to the Murrays and were not included in the mineral rights. The Seversons appealed to the 9th Circuit Court of Appeals (which has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), whose judges reversed the lower Court. The 9th Circuit was asked to reconsider its decision. This rarely happens, but, in this instance, the 9th Circuit agreed and sent the case to the Montana Supreme Court, asking them to determine, once and for all, whether fossils belonged to surface or mineral rights as the State of Montana defined them. The Montana Supreme Court ruled they were part of the surface estate.

            In the meantime, the Montana State Legislature had unanimously passed legislation declaring that fossils did not fall within the reservation of mineral rights in Montana. As a result of the Montana Supreme Court ruling, the 9th Circuit vacated its original opinion and concurred that the “Dueling Dinosaurs” were part of the surface estate of the Murrays property.[21]

              As soon as the original 9th Circuit opinion was issued in late 2018, the AAPS cranked up its public-alert system to raise funds to file a “friend-of-the-court” brief and to rally its members, and it did so with a degree of sensationalism that might have been good PR but got in the way of reasonable attempts to discuss the merits and potential repercussions of the case.

A re-creation of what the Dueling Dinosaurs might look like once fully exposed. © Samuel Farar.

            There were three main battle cries: “fossils are not minerals,” “protect the rights of landowners,” and “all fossils are in danger.” The first counted upon a kneejerk response on the part of a public distrustful of nuance: “That’s crazy; of course fossils aren’t minerals.” The second was designed to elicit a no-less-automatic “don’t tread on me” reaction from fossil dealers and collectors in Western states, many of whom are aware of the long history of tension between private landowners and government agencies over questions of land rights, access, and ownership. And the last was the tried-and-true fundraising tactic of the exaggerated emergency; like most of those, it was not precisely true. Still, fossil clubs around the U.S. dutifully forwarded the AAPS’s calls-to-action in emails and newsletters to their own members.

            But the original question was never whether fossils were literally minerals. What the 9th Circuit court held was that, in split-estate cases, fossils belonged to the owner of the mineral rights rather than to the owner of the surface rights. The distinction between “fossils are minerals” and “fossils belong to the holder of the mineral rights” may seem subtle, but, as a rhetorical device, the difference is enormous. The second makes a boring headline; the first fans natural skepticism and makes fact and detail secondary.

            As far as the question of protecting landowners, the American reverence for “private property” deserves some thoughtful exploration. So, likewise, do the reasons for which the “right” of property ownership is so often considered more important than other rights—including those of the public to have access to important scientific information. In fact, the American legal system already treats property rights as more important and accords them more protection, on balance, than it does many other kinds of human rights.

            Perhaps this is rooted in three founding notions of the United States: that only white, land-owning men were eligible to vote or to participate in politics; that property could simply be taken from the people who occupied it before Euro-Americans wanted to live on it, farm it, log it, or mine it; and that some men, women, and children were property. It’s also worth noting that, in the Declaration of Independence, Thomas Jefferson intentionally changed John Locke’s seventeenth-century formulation of the natural rights of human beings from “life, liberty, and property” to “life, liberty, and the pursuit of happiness” among the “unalienable rights” with which citizens were “endowed by their Creator.”

            In the Murray case, however, “protect the rights of landowners” was a far-from-subtle attempt to scare readers into believing that “someone was coming” for their property.

            In fact, both the mineral-rights holder and the surface-rights holder are landowners. That being the case, which landowners’ rights were in peril? Further, whether fossils belong to the mineral-rights holder, to the surface-rights holder, or to some combination of the two, they belong to parties whose permission must be sought to excavate fossils and who are entitled to share in the proceeds from any sale of those fossils.

            What the AAPS call appeared to mean was “protect the rights of surface rather than mineral landowners,” a position that may have depended less on the argument that fossils did not belong within mineral estates for legal or philosophical reasons and more on the worry that past deals for the sale of fossils needed protection. It was, that is, predicated on another hypothetical: that, if the “bad” 9th Circuit ruling stood (i.e., fossils were part of the mineral estate), fossils collected, sold, or traded on the basis of agreements with surface-rights holders might suddenly belong to someone else—the mineral rights holder—nullifying previous deals and prohibiting the future sale of fossils already collected on the basis of accords with surface-rights holders. As a result, or so the “slippery slope” argument went, fossils would be confiscated or tied up in lengthy legal disputes over ownership. There was, moreover, the implicit warning that this “threat” would spread across the United States.

            In its own opinion, however, the 9th Circuit addressed these fears directly:

[A] museum’s ownership of fossils would only be in doubt following this decision if the museum purchased fossils from the owner of the surface rights of the property where the fossils were found [and] the mineral estate was owned by another party that did not consent to the sale of the fossils to the museum…. Even then, if the mineral estate’s owner successfully sued the museum for ownership of the fossils, the museum could recover the value of the sale from the owner of the surface estate. (Murray and Murray v. BEJ Minerals, LLC, and RTWF, LLC, 2018, FN 11)

            What that means is that the risk that “all fossils” were in danger, or that museums might be forced to give up important fossils, was wildly overblown.

            There was, moreover, no indication that the 9th Circuit intended its ruling to apply to all past sales of dinosaur specimens[22] (the fact that the fossils in the case were discovered in 2006 was relevant to the Murray case, but had no bearing on other, previous sales), and the high value of the fossils played a role in the thinking of every court that touched the Murray case. There’s no reason to think that the ruling would have been extended to more ordinary or less profitable fossils. Even if it had, however, the point remains: It is immaterial—at least for future exploration and sales—whether the fossils belong to the surface-rights holder or the mineral-rights holder. If they were found on private property, one rights-holder or another would be entitled to profit from them unless she or he had contracted otherwise.

            The overriding concern, in fact, was that private fossil owners and dealers, who had obtained their fossils through arrangements with surface-rights owners, might not own them (or their profits) anymore. In other words, the issue wasn’t the protection of fossil resources or the patrimony of museums but the safeguarding of commerce.

            Recall that the issue became a legal contest only because the Murrays attempted to sell the “Dueling Dinosaurs” at auction, and parties who feared being left out of the profits objected. Because the Murrays chose to market the fossils via the auction process, the specimen was just as likely to end up in a museum, in the living room of a movie star, or in the penthouse showroom of an anonymous private collector in Abu Dhabi or Tokyo. Science and the public trust, clearly, were not foremost on the Murray’s minds.[23]

            When overblown claims about the virtue of fossil sellers are made, then, the reality that high-value fossils often end up somewhere other than a public museum—because they can command much higher prices in the private sphere—needs to be part of the conversation. That doesn’t mean all fossil dealers are venal and “only in it for the money,” but it does mean that money is a motivation—in some cases, the only motivation. That fact has to be acknowledged not as a slam against the sellers of fossils but as an element of the industry in which such sales take place—and Phipps, the Murrays, and the Seversons were examples of it.[24]

            The competition for important and unusual specimens that exists between fossil merchants and private collectors, on the one hand, and, on the other, museums and institutions, is anything but hidden. On the contrary, it takes place in the open:

  • “The Dinosaur Trade: How Celebrity Collectors and Glitzy Auctions Could Be Damaging Science”: “‘Fossils are not like ordinary art objects,’ says David Polly, president of the Society for Vertebrate Paleontology. ‘A skeleton like this [a Wyoming dinosaur auctioned in Paris in 2018 to an anonymous bidder for nearly $2.6 million] is potentially a unique and irreplaceable piece of evidence of earth’s past, and in that sense it’s important to all of us’” (Reynolds, 2018);
  • “Dinosaur Fossil Collectors ‘Price Museums Out of the Market’”: “[P]alaeontologists … fear not only the loss of scholarship but also the diminution of appreciation for the work that goes into discovery, excavation and reconstruction of a dinosaur skeleton as they become fashionable objects of home décor” (Helmore, 2019);
  • “Dinosaur Skeletons Aren’t Décor—They Shouldn’t Be Sold to the Highest Bidder”: “[W]e’ve been too lax about letting scientifically important fossils be ushered away into uselessness by those looking for a conversation piece” (Switek, 2015);
  • “Bones of Contention”: “Ranchers who had once allowed scientists to explore their land for free began leasing it to the highest bidder. Paleontologists lost out to amateurs with more money, and they lost specimens to vandals and thieves, some of whom went after fossils with sledgehammers. Federal agents have tracked stolen American dinosaurs as far away as Japan. The paleontologist Kirk Johnson, the director of the Smithsonian’s National Museum of Natural History, says, ‘The day Sue [the T. rex] got auctioned is the day fossils became money’” (Williams, 2013);
  • “Forget the Old Masters, It’s All About the Old Monsters in the Booming Market for Dinosaur Fossils”: “[A]s the market roars and collectors rush to snap up the best gems, it may become more difficult to keep these prized pieces of natural history on public view—and within reach of scientists…. But Eric Mickeler, who led the [June 2018 Aguttes sale], says dinosaur fossils are akin to other gems. ‘It is a mining product resulting from a fortuitous meeting, similar to the discovery of an exceptional diamond’” (Brown, 2019).
  • “The Dinosaur Fossil Wars”: “The paleo-passion … extends far beyond celebrities. A money manager in New Jersey, whose office displays several striking fossil specimens, including a three-foot-long Cretaceous Psittacosaurus, commented that ‘the group who used to be serious fossil collectors—that’s really grown. Since the book and movie Jurassic Park, interest in fossil collecting has gone into overdrive, affecting demand and elevating prices’” (Webster, 2009);
  • “Carnivorous-Dinosaur Auction Reflects Rise in Private Fossil Sales”: “Paul Barrett, a paleontologist at the Natural History Museum in London, says that because museums are buying fewer fossils, owing to tighter budgets and the fact that many established museums already have large collections, commercial fossil collectors may now be targeting private buyers. ‘There seem to be a larger number of wealthy companies and individuals interested in acquiring dinosaurs,” he says’” (Pickrell, 2018).
  • “Rustlers Finding Gold in Dinosaur Bones”: ‘‘Sadly,” said Michael Woodborne, a University of California paleontologist, … ‘‘these resources, which mean so much to science if properly investigated, are being ripped out of the ground by people who see them not as the gateway to knowledge but as mere trophies.’’ (Coates, 1991);
  • “Paleontology and Private Fossil Collecting Can Be at Odds in the Hills of Wyoming”: “[I]n many cases, Green River’s best and rarest specimens—prehistoric horses, crocodiles, birds, and more—are reserved for those with the deepest pockets, destined for kitchen islands and backsplashes…. [I]n the popular world of commercial fossils, cash beats scientific knowledge—and there’s lots of cash to go around. As more illegally collected fossils hit online shops and auction blocks, museums are having to buy up significant (and expensive) specimens” (Switek, 2018); and
  • “Bones of Contention: The Regulation of Paleontological Resources on the Federal Public Lands”: “The high-priced market for fossils is making it more difficult for paleontologists to protect legally permitted sites currently under excavation, as well as forcing them to compete with commercial dealers who can outbid them for the rights to work sites on private lands. The potential profit from the sale of fossils can also lead to the inadvertent destruction of delicate fossil remains by inexperienced collectors who see only the dollar signs of profit in the remnants of the past” (Lazerwitz, 1994).

Going once, going twice, gone

“Selling fossils” may bring to mind roadside rock shops, quiet deals with museum curators, or, in a more updated version, eBay storefronts with crisp color photos of astounding specimens. But national and international auction houses are one of the most important venues for the sale of unusual and high-ticket fossils.

Top: The Wyoming dinosaur sold by Aguttes for the equivalent of nearly $2.6 million in 2018 to an anonymous “French art collector.” Aguttes’ website proclaims: “In December 2016, Aguttes revolutionized the world market for the sale of large fossils by obtaining a record result of more than one million euros auctioning an Allosaurus skeleton…. The adventure continues in June 2018 [with] the auction of a specimen of carnivorous dinosaur … for €2,019,680 from the first floor of the Eiffel Tower, thus establishing a [new benchmark in] this market…. Our expert Eric Mickeler, member of the European Chamber of Art Consultants, continues to popularize paleontology with the general public…. Publicised exhibition sites, the opportunity for scientists to study these specimens, the possibility for our customers to name species in accordance with scientific rules, these are the services offered by the department to assist you in the purchase or sale of dinosaurs by auction” (“Dinosaurs & Natural History,” 2019). According to Mickeler, “herbivores do not quite excite businessmen who buy dinosaurs the same way as carnivores do. They want to buy carnivores like themselves” (“Rare Dinosaur Skeleton,” 2018). Below: The “world’s largest privately-owned woolly mammoth skeleton,” which Aguttes sold for the equivalent of roughly $650,000 in 2017.

            Many well-known auctioneers (Heritage Auctions, Christie’s, Bonhams, Aguttes in Paris, Able Auctions in Canada, and others) maintain “natural history” departments dedicated solely to the sale of fossils, minerals, meteorites, and other “scientific” specimens. Literally thousands of fossils are up for auction at any given time, ranging from “meg” teeth and trilobites to complete Triceratops skeletons (top price: $657,250.00 in 2011 at Heritage) and ichthyosaurs (top price: $239,000.00 in 2008, also at Heritage; see also Sutton, 2018; and Brown, 2019). Though part of the sales pitch at auction houses is typically that especially pricey specimens are “museum-quality,” the fossils almost always go to private buyers.[25]

            In 2019, for example, the nearly complete specimen of a theropod dinosaur was sold at auction to a private buyer in Paris for $2.6 million. The skeleton is similar to that of an Allosaurus, but “differences in features including its teeth, skull and pelvis … are significant enough for it to be considered a new species (Pickrell, 2018). David Polly, then President of the Society for Vertebrate paleontology, wrote the auction house asking it to cancel the sale, but it did not. Meanwhile, Aguttes spokesperson Eric Mickeler said he hoped the fossil would be placed in a museum, but, however it turned out, “the sale [was] honest, public, legal, and documented” (Pickrell, 2018).

            Mickeler went on to tell, a leading online clearinghouse for art auctions and sales nationally and internationally, that Aguttes removes all doubts about provenance “by systematically asking for the legal file of the dinosaur [which must include] the title deeds of the land, the excavation authorizations, the paid mineral right, the quarry map, the bones map, the export papers showing the customs taxes paid.” Hans Sues, however, curator of vertebrate paleontology at the Smithsonian Institution, noted, “A lot of the fossils that come on the market are from countries like China, Argentina, and Brazil that have very desirable types of fossils, including dinosaurs, and even though these countries have regulations on paper, somehow stuff always gets out. You go to any major mineral show and there are dinosaur skeletons, or woolly mammoths, or woolly rhinoceroses—beautiful skeletons that get out of these countries. So obviously, the law and the enforcement of the law are quite different” (Sutton, 2018).

            That appears to be true in the case of Mongolian fossils as well, whose export and sale is illegal. Wynne Parry, writing for LiveScience in 2012, revealed that his research had shown that

[t]he auction house I. M. Chait offered the skull of a Tarbosaurus … for sale on March 24, 2011, and a Tarbosaurus leg this past May 6. Skinner Auctioneers & Appraisers in Los Angeles offered two dinosaur eggs from Mongolia’s Gobi Desert on June 2. Bonhams offered a Tarbosaurus skull on May 17, 2011, and, later in the year, on Dec. 11, offered a frilled Protoceratops skeleton found in the Djadokhta Formation, which is located primarily in Mongolia. (The remainder of the formation is in China, which also forbids the export of fossils.) (Parry, 2012)

            Morocco has also realized that its paleontological heritage is being siphoned away and has begun beefing up enforcement of its own laws. In 2017, Morocco succeeded in blocking the Hôtel Drouot auction house in Paris from selling a plesiosaur skeleton that had been smuggled out of the country in 2011. The skeleton, seventy-five-percent complete, had been priced starting at the equivalent of about $400,000.00 (Cabrera, 2017). In 2018, Morocco investigated the sale of the tail of an Atlasaurus, allegedly from the Atlas Mountains, for $96,000 by the Morton Subastas auction house in Mexico City, Mexico (“Morocco Probes,” 2018), and Ahmed Benlakhdim, head of the geology department of the Ministry of Mines’ geology department, told Libération that same year that a bill to “regulate the extraction, marketing and exportation [of] rare specimens and to establish a national collection” was “in the process of being drafted” (Ollivier, 2018).

            To return to the Murray case: Repeating, often derisively, that some ill-defined “they” were trying to prove that “dinosaurs are minerals” was no more than diversion and click-bait. It took the focus off the far more important questions, such as whether important scientific specimens found in the U.S. should stay in the U.S.; whether they should be bought, sold, or owned by anyone outside of the public trust; and, if they can be, whether any limitations should be placed on that commerce in order to balance competing interests. Whatever one’s opinion about these issues, it seems obvious that the opportunity to advance a long-delayed conversation was squandered in the hype over Montana’s “Dueling Dinosaurs.”

Ownership & “private” property

In the midst of the Murray case, Mike Triebold, a past president of the AAPS and currently president of Triebold Paleontology Inc. in Woodland Park, Colorado, was interviewed, and one line from his comments circulated widely online: “If they don’t like the free enterprise system, don’t participate in it, but don’t demonize those that do” (see, e.g., Pringle, 2014). It’s an interesting position—first because it insists on the familiar, categorical, zero-sum battle lines that have shown themselves to be utterly useless up to now: Anyone who raises questions or doubts about “free enterprise” in general or about “free fossil enterprise” in specific is “demonizing” it. And, second, because the corollary of Triebold’s statement merits equal consideration: If you are in thrall to the free-enterprise system, don’t demonize those who find its consequences alarming.

            In considering this appeal to the expedients of free enterprise, it’s worth keeping in mind some of the other innovations of the free market: the ninety-hour work week; minimum wages far below the cost of living; dangerous and even deadly workplaces; an alarmingly disproportionate concentration of wealth; the offshoring and outsourcing of American jobs; environmental disasters; a severe reduction in food- and product-safety monitoring; crushing student-loan debt; a population of twenty-seven million Americans without health insurance; massive leaps in prices for consumer goods, food, rent, and utilities; a significant decline in the enforcement of antitrust laws and the rise of giant corporate monopolies;[26] destruction of workers’ rights; the Great Depression of the 1930s; the deregulation and subsequent failure of the savings and loan industry in the 1980s; and the deregulation of banks and resulting real-estate-market crash in 2008. “Free enterprise,” moreover, is all too often shorthand for “free of regulation,” the neoliberal, laissez-faire, “invisible hand” approach to business, which has, in fact, proven to be incapable of protecting the good of the many in virtually every context in which it has been applied.

            A related philosophy, expressed by Peter Larson in a series of emails to Fossil News about the Murray case in late 2018, goes hand in hand with a belief that “free enterprise” holds a priority over all else. In the context of a discussion about whether specimens of great scientific value should be privately owned or rather held in institutions for the public trust, Larson commented: “The last I heard, private land is just that. Check out the US Constitution if you think you can nationalize fossils without violating the principles of private ownership.”

            First of all, carving out a distinction for especially scientifically valuable fossils isn’t synonymous with and doesn’t even require “nationalizing” fossils. More importantly, private ownership is a social relationship among citizens, not merely a transaction between a person and a thing. Inherent in it is the power to exclude, by force and even violence (“Trespassers Will Be Shot”), and that’s worth some honest reflection.

            Second, the Constitution doesn’t confer (or deny) a right to hold property. Private property wasn’t even mentioned in the original document, and appeared only when the Bill of Rights was adopted in 1791, three years after the Constitution was ratified. What the Bill of Rights says is that the government cannot deprive anyone of property without “due process of law” or take private property “for public use without just compensation.” This means that government can sometimes exercise the power to operate in the public interest (the “Takings Clause” of the Fifth Amendment), subject to limitations recognized by the courts. The Fourth Amendment’s ban on “unreasonable searches and seizures” protects private property from “invasion.”

            Private property (in this context, meaning chiefly real estate) is nonetheless commonly “taken” to benefit the public interest (to build parks or roads, for instance). This is not to argue that government bodies are uniformly ethical or principled, that the compensation they offer is always “just,” or that “due process” is invariably observed, but it is to say that the Constitution provides for the possibility far, far short of “nationalization.” Moreover, if a landowner is excavating fossils (or allowing them to be excavated) in order to sell them, what difference does it make if the specimens are bought by a private individual or if the government “justly compensates” the owner in order to keep the fossils in the public domain?

            There is something willfully blind to history, meanwhile, in the insistence that the concept of “private property” is untouchable in the context of land that was stolen from the people who originally lived there[27] and of the long history of dispossession of resources from indigenous lands.[28]

            But the topic is fossils, and the point is not to litigate the merits of the free vs. regulated market or to advocate the abolishment of private property. Rather, it is to ask why the “free enterprise” system in the fossil industry deserves so much reverence with respect to all other questions of equity and why private land ownership merits such a heated defense, especially given its historical context in this country and particularly when ownership of real property is not now equitably distributed and is unavailable to a significant proportion of Americans.[29] Why, in other words, are these so often the first lines of defense for the commercial fossil industry?

            Or, to put it another way, is there really no choice but to frame issues of fossil commerce within these terms alone? They need not be banished from the conversation, surely, but neither must they be the entirety of the dialogue or the wellspring from which all policy and debate must flow.

Dino Hunters

Other aspects of the image of commercial fossil collecting that the AAPS promotes include the commercial fossil hunter who is “as good as any academic” when it comes to field methodology or scientific knowledge and who, though he may be justifiably trying to “make a living,” isn’t “in it only for the money.” If those are important precepts for the organization, the opportunity to educate the public should have been irresistible when the Discovery Channel premiered its new series, Dino Hunters, in June 2020. Indeed, for its portrayal of commercial fossil collectors and of the fossil market, Dino Hunters was everything the AAPS says it disdains.

Discovery’s “Dino Hunters”: Never at a loss for cowboy hats. Don’t try collecting fossils without one.

            Among the more general fossil-interested public, meanwhile, Dino Hunters became the subject of calls for boycotts almost from the moment the series appeared. The hashtag #CancelDinoHunters was born on Twitter and Instagram, and social media paleontology commentators couldn’t find enough ways to malign the program. As one poster wrote on Instagram, “There are NO paleontologists in this show and no ethical science conducted—just a bunch of greedy & corrupted clowns looking to profit off fossils & promote fossil commercialization.” Another wrote, “Dino Hunters goes against everything that scientists [believe],” and still another urged others to respond to Dino Hunters by “informing [yourself] on why this [series] in no way represents paleontology or what it stands for” and by “promot[ing] good fossil hunting ethics and shar[ing] any important fossil finds with local museums, paleo societies or professionals.”

            One might object to Dino Hunters on the grounds that it offers the same fake-drama, low-content pseudoscience that the Discovery Channel has been churning out for years, but a particularly galling aspect was the show’s blatant and ultimately tedious message—that “Dinos Make Bank,” as one of the series’ promo spots put it. The entire context of Dino Hunters, in fact, which spotlights various groups of “hunters”—Clayton Phipps of Dueling Dinosaurs fame is the star of the “Montana” segment; Mike and Jake Harris and John and Aaron Bolan appear for Wyoming; and Jared Hudson is shown at work in South Dakota—is that commercial fossil hunting is driven almost exclusively by economics. Each episode begins with this dramatic introduction:

Across the American west, ranchers are fighting to preserve their way of life, struggling to make ends meet by raising cattle. A few modern-day frontiersmen have found a new way to save their livelihoods—hunting for dinosaurs.

            Every single fossil excavated on the series is immediately assigned a dollar value, often before any scientific information has been provided, and the show’s “frontiersmen” and “cowboys” talk endlessly about money—how much excavations cost, how close they are to being unable to “feed their families,” about the need to “keep their bankers happy” or the financial disaster that will befall them if anything goes wrong, about what they can sell quickly “to make ends meet” or about “not being able to finish out the season if we don’t find something soon.”

            Concerns about money are common to Americans, and with good reason, but the harping on the market value of fossils ultimately becomes hard to reconcile with the idea that commercial collectors do what they do for the love of fossils and not solely “for the money.”

            In the first minutes of the first episode, in fact, Clayton Phipps utters a glaring falsehood. Talking about the high asking prices of complete dinosaur fossils, he says, “It’s museums that can usually raise the cash for the big skeletons.” In fact, it is not; it’s private collectors, celebrities, and corporations. (The $8.36 million that the Field Museum paid for Sue the T. rex was entirely provided by “McDonald’s Corporation, Ronald McDonald House Charities, Walt Disney World Resort, the California State University System, and private individuals; Browne, 1997).

            Perhaps that remarkable sale is what led John Bolan to explain, later in the series, his “financial decision” to abandon a fruitless dig for what he had hoped would be a complete hadrosaur. He and his team would be better compensated by selling the site to a museum, he opined, adding that “A lot of museums, they have no real risk. They have all the time in the world, and a third party is paying them for this.” Again, if it needs to be said, that is hardly ever true. The Field Museum’s unprecedented (before and since) fundraising effort was for an exceptional celebrity dinosaur, and both Disney and McDonald’s received more than their money’s worth in publicity (and sales) in return for displaying and touring with life-sized casts of Sue. That’s not even remotely in the same ballpark as paying a team to excavate a “maybe” hadrosaur.

            By definition, meanwhile, museum funding is virtually always at risk because very few museums in the U.S. are fully publicly funded. According to one study, museums in the U.S. receive government support (from any level of government) at levels that “ranged between 7% and 33% by museum type… [W]hen government administered museums are removed from the analysis, the highest proportion of public support drops to 24%” (Manjarrez et al., 2008: 8). Non-profit natural history and natural science museums receive 13.9% of their funding from government sources (27). The Manjarrez group’s data are twelve years old, however, and every indication is that state and federal funding for museums has declined significantly and steadily since they were gathered.

T. rex, Jr., Nanotyrannus no more.
© “Conty,” CC License 3.0.

               As social media critics of Dino Hunters noted, in addition, no accredited paleontologist is involved in the show’s excavations nor is one ever interviewed (one individual, whom the narrator identifies as a “paleontology expert,” is an expert preparator but his only university degree is a bachelor’s in biology). When scientific information is provided, it is often wrong: Nanotyrannus is no longer considered a valid species, except by the most stubborn holdouts, though Phipps is convinced he has found one;[30] Spinosaurus is not generally believed to be a biped; and one dino hunter claims several times that he has found “marrow” inside pieces of fossil bone, though marrow is soft tissue that doesn’t survive fossilization. (What he likely meant was “cancellous” or “trabecular” tissue, the lattice-like or “spongy” structure found inside some bones.)

            No one ever discusses, let alone collects, information on the stratigraphy, position, taphonomy, associated fossils, or paleogeography of the sites. Nor, finally, are important discoveries reported to any institution or museum,[31] despite the series’ claim, in its online promo materials, that the “groundbreaking finds” by the “dino hunters” “[have] set the scientific world on fire.”[32] Perhaps other of their finds have done so, but “the scientific world” appears never even to have seen the fossils that Phipps, the Harrises, the Bolans, Hudson, Murphy, and others excavated on Dino Hunters.

Proof by example: not much proof

In public materials in support of commercial collecting, one common AAPS device is the logical fallacy known as “proof by example”—the attempt to demonstrate the validity of an assertion by citing a series of individual cases. The organization’s “Fossil Specimens Placed in Museums and Universities by Commercial Paleontology” page is an example, as is the claim that “magnificent displays” of fossils grace “any number of prestigious institutions” thanks to professional collectors (Triebold, 2007).

            The point always seems to be to create a perception that is totalizing. If one careful, science-minded commercial collector exists, then they all are. If one fossil dealer has generously donated to a public museum, then they all do. If one snobbish, anti-commerce paleontologist exists, then that’s true of the rest of them, too.

            Sometimes even scientists get into the act. Gareth Dyke, a paleontologist at the University of Southampton, England, defended the journal Nature against accusations that it was wrong to publish the description of an eleventh Archaeopteryx in 2011 because the study specimen was owned privately. (In this case, the specimen belongs to Burkhard Pohl, owner of the Wyoming Dinosaur Center, who bought it for an amount that likely exceeded $1 million; Stokstad, 2015.) The Archaeopteryx is on permanent display at “WyoDino,” but the Center, a small, privately owned museum in Thermopolis, Wyoming (pop. 2,850), is not a “recognized repository” in which specimens can officially be deposited.

            Such rigidity was wrong-headed, Dyke wrote, citing the example of the admirable work of avocational collectors on the Isle of Wight, “one of the best places in Europe to collect the remains of dinosaurs,” who have discovered new species and whose private collections “can tell us a huge amount about … early Cretaceous ecosystems.” Collaboration was the key, Dyke argued, because “the science of paleontology cannot exist in a professional vacuum” (Dyke, 2015).

            That anyone is in favor of “professional vacuums” or opposed to “collaboration” is doubtful, but here is where apples and oranges collide. None of Dyke’s anecdotes are relevant to the legitimately held opinion that important specimens should reside in public repositories of a specific kind. Debates can (and do) take place over that professional standard, but it isn’t automatically rendered incorrect because virtuous amateur collectors exist.

            Journalists who write about fossil commerce fall into an identical trap, perhaps hoping, if they make no challenge to what they are told, that their work will seem more objective. Lewis Simons’ “Fossil Wars” for National Geographic is one example among hundreds:

I spent months tracking commercial fossil dealers and investigating their trade, not just in Siberia and Colorado, but also in Morocco, northeastern China, Montana, and the Dakotas. I discovered that some dealers are careful collectors and honest businessmen; others are disreputable and brutish, ripping bones from national parks and other protected lands and selling them for a quick buck. Still others, particularly in developing countries such as China and Morocco, are peasants striving to ease their painful lives…. . During my travels I witnessed some of the damage that unscrupulous or untrained dealers do. In northeastern China I watched pick-swinging farmers hack rock slabs containing the remains of ancient birds and fish with little more concern than they gave to plowing their fields. I saw smuggled and fake fossils sold as legitimate in the United States, which strictly prohibits the excavation and export of fossils from government-owned land without a permit, but has no law banning imports—even when they’ve been smuggled out of their originating country. I also watched commercial dealers excavate fossils with exquisite care, cleaning away the detritus of eons … and keeping finely detailed records of their discoveries. (Simons, 2005)

            In summary: Each observation cancels every other observation, so the net impact is neutral.[33]

            Still, it’s not that claims about virtuous collectors (commercial or not) are false or manufactured. They aren’t, and there are plenty of good guys. Richard Conniff, author of House of Lost Worlds: Dinosaurs, Dynasties, and the Story of Life on Earth, writing in National Geographic in October 2019, described the way that discoveries by amateur and commercial collectors in the U.S. and abroad “almost inevitably oblige collectors and paleontologists to work together,” noting “the extent to which private collectors, commercial fossil hunters, and museum paleontologists now quietly cooperate,” in part because of necessity. Kirk Johnson, director of the Smithsonian National Museum of Natural History, told Conniff that “[c]ash-strapped museums everywhere have cut research staff and budgets. Commercial collectors are thus ‘digging much more than scientists’” (Conniff, 2019).

            John Pickrell (author of Weird Dinosaurs) wrote in New Scientist in 2020 about a sort of paleontological Robin Hood, François Escuillié, the owner of Eldonia, a fossil dealership in France, who has made a practice of buying black-market specimens and donating them to museums, including the holotype of a waterfowl-like dromaeosaurid theropod, Halszkaraptor escuilliei, named and described in 2017 by paleontologists Andrea Cau, Khishigjav Tsogtbaatar, Philip J. Currie, and their colleagues, which had been illegally collected and smuggled out of Mongolia some time prior to 2015. The fossil was scheduled to be repatriated to Mongolia in 2020.

            Australian rancher Ross Fargher has spent some thirty years protecting the rare Ediacaran fossils that crop out in such profusion near his cattle station in South Australia, and he has created a unique research opportunity for paleontologists, including Mary Droser (University of California at Riverside) and Jim Gehling (South Australian Museum), who have worked on the fossils for nearly two decades. According to Droser, Fargher’s commitment—he chases off looters, protects their research sites, runs tours, arranges logistics for visiting scientists, and uses his earth-moving equipment to help expose fresh collecting areas—has allowed them to “invent … a new way of doing paleoecology” (Finkel, 2019). In March 2019, the South Australian government purchased a large section of Fargher’s land, increasing the size of the existing Ediacara Conservation Park by a factor of ten and insuring that his fossils will be protected permanently. In 2018, the U.S.-based Paleontological Society gave Fargher its Strimple Award for amateur paleontology (Finkel, 2019).

Dickinsonia, one of the most familiar Ediacaran fossils, from the Flinders Ranges in South Australia, where Ross Fargher’s ranch is located. © Flinders Ranges Ediacara Foundation.

            In India, meanwhile, where fossil collecting and commerce are all but entirely unregulated, Vishal Verma, a high school physics teacher, has spent twenty years traveling his country to collect and save dinosaur nests, a fossilized gymnosperm forest, and hundreds of other specimens from looting and commercial over-exploitation. Guntupalli V. R. Prasad, a paleontologist at the University of Delhi, applauds Verma’s efforts: “He does more field work than any paleontologist,” he said (Kumar, 2018: 24).

            But anecdotes are not evidence, if evidence is needed, and, standing alone, they cannot serve as the basis for reasoned argument or for public policy. But “proof by example” is a common recourse: if cases can be cited of fossil dealers who care a great deal about science, who are generous in donating to museums, and who regularly partner with professional paleontologists; and if museums contain specimens that wouldn’t be there if commercial dealers hadn’t found or provided them, then any criticism of fossil commerce must be invalid.

            Another weakness of proof by example is that it works both ways. If we’re citing examples, in fact, there are just as many, and perhaps more, instances of egregious, unethical, and illegal behavior on the part of private and commercial fossil collectors than there are instances of virtue.

            Virtually every national park, national monument, and protected area in the U.S., for example, has a problem with poaching—that is, with visitors taking home whatever they can pick up, including artifacts, stone, wood, rare cacti and other plants, and, of course, fossils. According to a 1998 review of laws protecting fossils on public land, “Due to the expanding commercialization of fossils, it has become increasingly difficult to protect fossils on public lands. To meet the growing demand for fossils, people are stealing them from public lands in the United States, and abroad” (Lundgren, 1998).

            There isn’t always a way to be sure that fossils are poached in order to be sold—although, in others, the connection between theft and commerce is irrefutable—but it’s not unreasonable to think that the proliferation of the fossil trade helps fuel the idea that fossils are highly valuable. On this point, experts agree, and fossil dealers themselves can hardly deny that the value of fossils (perceived or actual) is what makes their businesses possible. Thefts of fossils from public and private sites happen precisely because some collectors cannot tolerate the idea that a pile of money is just sitting there “when I could have it.”

            A few specifics:

  • The Fossil Cycad National Monument, home to one of the world’s greatest concentrations of cycadeoids, a major group of Triassic seed plants known as Bennettitales, was established in South Dakota in 1922. According to Tony Martin of the Paleontological Society, “By 1929, an NPS report on the monument stated that all cycadeoid specimen previously exposed had been removed, and there was ‘nothing left… of interest to visitors’” (Martin, 2019).
  • “Operation Rock Fish” in Wyoming in 1995-1996 used aerial surveillance of the Fossil Butte National Monument and other public lands to record fossil theft, resulting in twenty-nine felony arrests (Abel, 1996) and the first felony conviction for fossil theft in U.S. history for the theft of fossils from Badlands National Park (Santucci, 2020).
  • National Park Service paleontologist Vince Santucci said that, while doing graduate research, he “soon learned that an escalating commercial fossil market was resulting in increased incidents of fossil theft on public lands including national parks” (“Vincent L. Santucci,” 2020). In 1991, the FBI recruited Santucci to investigate fossil theft from protected areas (Santucci was part of the FBI team that raided the Black Hills Institute of Geological Research in South Dakota in 1993, from which Sue the T. rex was confiscated; Breznican, 1997).
  • In 2017, a trackway of fossilized footprints were excavated and stolen from Death Valley National Park (Martin, 2019).
  • Estimates are that some twelve tons of petrified wood are taken without permission from Petrified Forest National Park in Arizona each year (May, 2017).
  • The site of extraordinary find of the skull, jaws, and teeth of a 330-million-year-old shark in the Mammoth Cave National Park in November 2019 has been kept secret from the public and cannot be viewed because of “theft and vandalism in the past” (Austin, 2020).
  • According to the Nebraska National Forest, more than 20% of the 30,720 acres in the Oglala National Grasslands has been subjected to illegal vertebrate fossil collection; of thirty-nine sites “designated as having special importance because of exceptional preservation of fossils, 11 (28%) showed evidence of unauthorized collecting” (cited in Lazerwitz, 1994).
  • In 1991, the Bureau of Land Management (BLM), in cooperation with the Museum of the Rockies, rescued an Allosaurus (“Big Al”) being excavated from public land by an overseas commercial collector” (Lundgren, 1998).
  • Other countries have problems with fossil theft, too, and the attempts are often even more daring. In 2015, a man who attempted to sell smuggled Chinese dinosaur fossils at the Tucson Gem & Mineral Show, an annual two-week affair that is the largest fossil market in the United States, was fined $25,000 after being caught by undercover agents (Proctor, 2016). Nearly twenty years earlier, in 1996, the Tucson trade show was the site of one of the largest fossil seizures in U.S. history when federal authorities confiscated four tons of valuable and unusual fossils, including dinosaur eggs, petrified pine cones, and fossilized crabs, all of which had been illegally imported for sale from Argentina (Pagan, 2008).[34]
  • An Irish fossil dealer, George Corneille, was investigated in 2017 after he advertised a partial Spinosaurus jaw from Morocco for sale through his Facebook page. Corneille insisted that Spinosaurus fossils are “not rare” and that “dozens [of specimens] can be found in other areas, such as Europe and America” and claimed he had bought the fossil legally at the Tucson show from a Moroccan dealer, though no documents regarding provenance or the sale were apparently ever produced. He was never charged and continues to sell Spinosaurus and Igdamanosaurus (Globidens) teeth and jaws, as well as other exceptional fossils from all over the U.S. and Europe, on his website.
  • The famous Burgess Shale fossil beds in British Columbia, Canada, are the source of a “fairly active” black market in fossils, according to Yoho National Park Warden Supervisor, Jim Mamalis. “The value can range from $300 or $400 for a fairly common trilobite fossil, but we’ve seen some of the more rare fossils from that area advertised for sale online for up to $10,000,” Mamalis said. In 2016, a Belgian tourist was fined $4,000 for walking off with a trilobite from Yoho that he had hidden in a sock (Nieoczym, 2016).
  • Between 1991 and 2001, the collection of the Paleontological Institute at the Russian Academy of Sciences in Moscow (Палеонтологический институт or “PIN”) was looted of “hundreds of unique fossils, potentially worth millions of dollars. According to accusations, the museum’s own directors and scientists set up private companies to sell the fossils and forge the export documents necessary to take those fossils out of the country (Weir, 2001). Larissa Doguzhayeva, a researcher at the museum and an expert on ammonites, blew the whistle on the practice, explaining that she first became suspicious in 1996 when Arkady Zakharov, at the time a PIN scientist, brought a German fossil dealer to see her with an offer “to buy a big collection of ammonites I had just gathered in field work. I told them it was state property, and asked them to leave my office.” Later, she realized the collection had been stolen from the museum, though PIN’s director refused to report the incident to the police. The same German dealer was arrested three years later while trying to “transport a truckload of partially undocumented fossils into Finland.” By 2001, Doguzhayeva acknowledged that the pillaging had probably ended because the fossil dealers had cut out the middleman: “Russia’s rich fossil grounds are being ruined by ruthless predators, working in league with rogue scientists, who smash the sedimentary strata with machinery and cart fossils away by the truckload. ‘The last time I went to search for ammonites, near Shilovka on the Volga River, I was stunned by the destruction,’” Doguzhayeva told The Christian Science Monitor (Weir, 2001). In January 2001, Zakharov, who formed the company Russian Fossils when he left PIN, was stopped as he attempted to ship a collection of 12,000 ammonites from the Volga region out of the country; Zakharov had officially declared that the fossils were “scientifically worthless” in order to circumvent export regulations. Zakharov insists the issue of theft or of unchecked over-collecting was invented “by political forces who want to discredit capitalism.” As for Doguzhayeva, he says, “she is against business” (Weir, 2001).

The ethics of “obsession”

One of the most egregious—and most fascinating—cases of “fossil madness” was the subject of Paige Williams’ 2013 article in The New Yorker and her later book, The Dinosaur Artist: Obsession, Science, and the Global Quest for Fossils (2018a). The book’s anti-hero was Eric Prokopi, who, as prosecutors in New York described him, operated a “one-man black market in prehistoric fossils.” Prokopi had been involved for years in a smuggling operation that poached millions of dollars of fossils, including specimens of the Cretaceous tyrannosaurid, Tarbosaurus bataar, from Mongolia.

            Prokopi, originally from Florida, had begun selling fossils in high school, and he opened a business, Florida Fossils, shortly after leaving the University of Florida with an engineering degree. At that point, Prokopi began calling himself a “commercial paleontologist.” At first, he sold mostly smaller fossils—shark and Tyrannosaurus teeth, mammal jaws, partial skeletons, and the like, in addition to doing prep work—but, as Williams tells the story, he realized his

best shot at big money was dinosaurs. The top sites in the American West were largely tied up in federal boundaries and, on the private side, in existing contracts that usually required sizable cuts to ranchers. Only one place on Earth holds big, beautiful T. rex-like dinosaurs in relatively soft sand, in a vast, remote landscape that all but insures privacy.” That place was Mongolia. (Williams, 2013)

Skull of Tarbosaurus bataar housed at the Mongolian Paleontological Center. From Tsuihiji, T. et al. (2011). Cranial Osteology of a Juvenile Specimen of Tarbosaurus bataar (Theropoda,Tyrannosauridae) from the Nemegt Formation (Upper Cretaceous) of Bugin Tsav, Mongolia. J. of Vertebrate Paleontology 31(3), 1-21.

            Prokopi’s undoing began in 2012 when he sold a Tarbosaurus skeleton through Heritage Auctions in New York—to an anonymous phone bidder—for just over a million dollars. What Prokopi didn’t know was that a Mongolian paleontologist living in New York had seen the specimen in the auction house’s catalog and set into motion a chain of events that would eventually involve Interpol, the federal authorities, and the president of Mongolia. The Tarbosaurus skeleton was seized from the auction and eventually repatriated to Mongolia in May 2013, just about a year before Prokopi was convicted on charges that carried a maximum prison sentence of seventeen years. He was given three months (“US Fossils Dealer,” 2014). Among Prokopi’s defenses was that Tarbosaurus fossils were common, anticipating by four years the excuse George Corneille would use during the investigation into his attempt to take a Spinosaurus jaw out of Morocco.[35]

The holotype of Tarbosaurus bataar, described by Evgeny Maleev, a Soviet paleontologist, in 1955. It is held at the Museum of Paleontology, Moscow (PIN).

            As a journalist, Williams is enviably neutral, and The Dinosaur Artist is a fascinating international detective story, but it’s also an important look inside the world of commercial fossil collecting and selling and the laws that regulate them—or fail to regulate them. At the same time, names that are familiar in the fossil trade today crop up in the story, including individuals who directly or indirectly did business with Prokopi or who had previously sold Mongolian fossils.

            The objects of contention are different, but Susan Orlean’s book, The Orchid Thief: A True Story of Beauty and Obsession, covers some of the same emotional and psychological territory. The Orchid Thief is an investigation of the events that led to the 1994 arrest of John Laroche for stealing endangered ghost orchids from the Fakahatchee Strand State Preserve, in the Big Cypress Swamp area of the Florida Everglades, in order to sell them to collectors and horticulture dealers. (Interestingly, Laroche had also been a collector and dealer of Ice Age fossils in his youth.) Laroche initially hoped to be acquitted because of a loophole in the laws, but he was ultimately convicted and received a sentence of six months’ probation. He had reasoned, he told Orlean, that “[s]omeone is going to figure out how to benefit from the law the way it is now and I just figured it might as well be me…. The state needs to protect itself…. I’m really on the side of the plants” (Orlean, 2018: 30).

            Craig Childs’ Finders Keepers: A Tale of Archaeological Plunder and Obsession also explores these themes in the context of the looting and theft of human artifacts in the American west, but for every instance of the word “artifact” or “antiquity” in the book, it’s possible to substitute “fossils”; for every potsherd or 10,000-year-old woven basket, substitute a Tyrannosaurus tooth, an intact false sabretooth skull or tortoise shell, a mammoth tusk.

            “Diggers [for antiquities] who sell have one thing in common,” Childs writes,

They dig because there is demand. Antiquities are one of the top illegal trades in the world…. On the world stage, artifacts from the American Southwest make up a dependable but relatively backwoods commerce. Meanwhile, diggers in Central America are trenching into monumental city-states rather than villages, and tombs instead of graves…. The money is much bigger, and so is the scale of looting. (95)

            In the U.S., threatened plants and indigenous artifacts are, legally at least, not so different from fossils. Endangered plants are covered by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and can’t generally be collected, removed, sold, or exported from public land, but only a few states extend those protections to private land. Under the Archaeological Resources Protection Act and the National Historic Preservation Act, archaeological sites and artifacts are fully protected on federal land as natural and cultural resources, but little guidance exists regarding private property. Some archaeologists think these laws don’t go far enough and ought to extend to “all archaeological artifacts; no matter … whose property they’re on” (Adams, 2018). The acts mentioned above exclude human remains and burial offerings, which are dealt with under a different law, the Native American Graves Protection and Repatriation Act, but the NAGPRA applies to private property only when a gravesite is excavated or disturbed. If it is not, no one can force a property owner to allow it to be excavated (Adams, 2018).

            Fossils are treated somewhat similarly but through a different set of laws: the Paleontological Resources Preservation Act. Casual, non-commercial collecting is generally allowed on public land (with exceptions that are arguably vague and bureaucratic), and other collecting by qualified individuals “for the purpose of furthering paleontological knowledge or for public education” (meaning, generally, professional paleontologists) is allowed by permit only.[36] Almost all of the provisions of the PRPA have been a sore point with some scientists and some avocational and commercial collectors for more than a decade, and various proposals have periodically been offered for revising it. So far, they all have sunk in a hurricane of squabbling. The regulations of the National Park Service, the U.S. Forest Service, the Bureau of Land Management, and, potentially, other federal land-management agencies, interpret the PRPA, though not always in the direction of greater clarity.

            In any case, the PRPA cannot be enforced on private property if collecting is carried out by the owner or anyone to whom she or he has granted permission. Nowhere in all of this does one find the concepts that fossils could be endangered or threatened; that they are natural, cultural, or scientific resources; or that collecting might have an impact upon the environment.

            Williams, Orlean, and Childs, meanwhile, all explore the conviction, so deeply embedded in America’s self-mythology, that the individual who discovers something “in nature,” and then thinks of a way to exploit it, is doing no more than fulfilling his natural (and national) destiny. Sometimes, it’s just about bragging rights: I found something rare; I found something worth money; I have something other people covet. More often, it’s a reflection of the imperialist mentality that runs like a coal seam through debates about ownership, control, and exploitation of fossils: If I found it, or if I can manage to get control of it, or if I can assert the most compelling claim to it, then it is mine. In other words, finders keepers.

            Adopting that playground taunt as the title of his book, Craig Childs traced the ethical, legal, and moral landscape in which debates take place over who should have the right to find and collect artifacts (archaeologists vs. amateur diggers), where antiques should be curated (private collections, tribal headquarters, public museums), and who has the right to have access to them (the public, universities, accredited researchers).

            Every detail of the venomous arguments he describes over the “right” to have access to artifacts is identical in all but the particulars to the collisions among accredited paleontologists, fossil dealers, and avocational collectors: every anecdotal claim that amateur collectors and professional dealers are science’s most faithful friends; every “no one can tell me what I can do with what I find,” regulation-flouting pot digger; every “respected businessman,” “good ol’ guy,” or “local neighbor boy” who turns out to be involved in an international smuggling operation; every action that the perpetrator justifies as “not hurting anyone”; every instance of disdain that private collectors and antiquities dealers heap upon “elitist” academics and “the government” is duplicated in the world of fossils, as is every bit of condescension from science professionals who disdain private collectors because they allegedly spoil archaeological sites, are unscientific and “unprofessional,” or because they’re “only on it for the money.”

            Williams, then, does for paleontology what Childs did for archaeological artifacts and Orlean did for exotic plants: she attempts to get to the bottom of the mania to touch, to hold, to take, to possess, to hoard, and to control. It’s no accident that the subtitles of all three books share the word obsession. But if “obsession” has a side that faces the light (passion, enthusiasm, dedication, zeal), it has another side that faces the darkness: acquisitiveness, self-absorption, nihilism, greed.

            In their books, Orlean, Childs, and Williams struggle to dissect the urge that pushes some people to set aside “big picture” considerations or ethical constraints and to act in ways that are exclusively self-interested and self-rationalized. That urge is sometimes justified by absence of other economic opportunities—the need to “preserve a way of life,” as Dino Hunters put it. The amber and mammoth ivory trades are two examples, but so is the trade in blood ivory and in endangered animal pelts and parts generally. Morocco, meanwhile, may be “the world’s greatest ‘fossil capitalism’ economy” (Osborne, 2000), and estimates are that more than 50,000 Moroccans are involved in the mining, sale, and export of fossil and mineral specimens (Sicree, 2009). The trade reportedly brought $40 million into Morocco each year—in 2000 (Osborne, 2000).

            These unlicensed and unregulated Moroccan excavators may originally have entered the fossil trade through selling the odd specimen to tourists, but, in the last two decades, fossil commerce has become a major industry with its own supply chain: at the bottom are local workers who sell to wholesalers who, in turn, sell to exporters, some of whom can earn the equivalent of $100,000 a year. (Ben Yahia, 2019). According to mineralogist Andrew Sicree, in the rural areas from which fossils often come, there may be few other jobs, though, in 2009, “around a hundred different export outfits batch the bulk of Moroccan fossil and mineral specimens; these are purchased by dealers at the world’s major fossil and mineral shows, such as those in Tucson, Arizona, and Munich, Germany. Then they are sold in lots of dozens or hundreds to gift shops in museums and malls” (Sicree, 2009). During a 2018 investigation into the Moroccan fossil trade by the French Magazine, Libération, a self-identified fossil “trafficker” explained that

“I locate deposits or traces of bones in books … and then I go there and dig with the locals.” He has already sold hundreds of skeletons around the world, including forty-eight Basilosaurus specimens [a predatory whale ancestor that lived in the Eocene] to a single foreign individual. After having excavated them from the ground, [the merchant] takes the … fossils to his country workshop near Rabat. About ten workers clean them and assemble them into an entire skeleton, even if it means 3D-printing parts or remaking them in plaster. The merchant sells at a local “souk,” a market where dozens of exporters flirt with the lack of legal regulation. “I detail the contents of my packages filled with bones to the Ministry of Mines which gives its approval to [the Ministry of] Foreign Trade,” he explains, implying that he does not indicate that there is a skeleton inside, whole, ready to be assembled. “All my pieces go with invoices from my Moroccan or American company. It’s neither legal nor illegal,” he admits. Other traffickers take skeletons out of the country informally, in batches, hidden in piles of stones in cars, counting on getting past poorly trained customs officials…. A ministerial decree of 1994 listed goods subject to export restrictions, such as those of paleontological interest,” said Ahmed Benlakhdim, head of the geology department of the Ministry of Mines. As a result, [the Ministry] cannot approve the release of rare specimens, including the bones and traces of reptiles, birds and mammals.” However, [the fossil merchant] assures [me] that none of his shipments has ever been blocked. (Ollivier, 2018).

The greatest myths ever told

The conversation about fossil commerce and about commercial and avocational collecting cannot go on as it has in recent decades. Or, rather, it can—provided the parties involved have no real intention of shifting the status quo by so much as a millimeter. As it is, nothing of long-term usefulness will be resolved if the factions do no more than drag their traditional assumptions and conventional world views into the debate and then simply retrench after every skirmish. One thing that keeps getting in the way is a collection of Great Myths:

1. The commercialization of fossils has no effect on professional paleontology or on avocational collectors or, if it does, it is a benign or even helpful one.

No kind of commerce has a completely neutral impact on the system in which it exists; this essay has traced some of the negative effects in the context of paleontology and fossil collecting. There is no question that there are also positive effects. The fact that issues of fossil commerce have become impossible to explore in an “ecological” sense—that is, we cannot objectively assess the collective impact of commercial fossil collecting because attempts to do so are immediately derailed by special-interest bickering—is exactly why the conversation must change.

2. Those with concerns about the commercialization of fossils believe all professional collectors are only out for the money and don’t care about science.

Some dealers in fossils work closely with and are trusted by professional paleontologists and are deeply interested in science. Some dealers in fossils are unscrupulous and could not care less about science or ethics. Some fossil dealers are only in it for the money. Some fossil dealers are in it because they’ve loved fossils all their lives. All of these assertions are true, but none of them need be true of every single individual in every single instance in order to create good-faith policies that benefit everyone.

            Meanwhile, constantly pitting one group of facts against the other, as if trying to force a balance scale to tip in one direction or the other, is exhausting and irrelevant. If most fossil dealers are above-board and ethical, that has nothing to do with the reality that black markets, smuggling, and looters and despoilers exist nor does it absolve good actors of responsibility for finding ways to intervene in nefarious practices and processes—precisely because crime and corruption in the fossil world so often take place right alongside legitimate business.

            In fact, one of the best ways for fossil merchants and the AAPS to protect “our livelihood” would be to come out strongly in favor of a crack-down on poaching, illegal trade, dishonest dealing, and environmental depredation, to police their own members, and to participate with law enforcement in bringing offenders to justice.

            None of the information in this essay proves definitively that fossil dealers are corrupt, greedy science-haters (and it isn’t intended to), just as 145 examples of donations to museums by commercial fossil sellers—or 10,145—don’t prove they are not. Anecdotes provide context, but, standing alone, they don’t prove anything.

3. Critics of the commercialization of fossils are “anti-commercial,” “anti-capitalist,” or “anti-free trade.”

Let’s say they are. That doesn’t make them wrong. Sketchy practices in shipping, trading, buying, selling, exporting, and importing of fossils are far from rare. Even when fossil commerce is legal, it has an impact on the planet, on the economic value of and demand for fossils, on casual collectors, and on scientific pursuits. No one is arguing that commercial fossil dealers don’t deserve to make a living. They do: just like everyone deserves to make a living. But all kinds of ways of “making a living” are questionable or even illegal. In other words, that’s not enough of an argument.

4. Limiting the collection and sale of scientifically important fossils means the end of fossil collecting for everyone.

This is a scare tactic, not an argument.

5. There is no way to craft laws regarding fossil commerce that are fair or balanced because “they” (“academic paleontologists” or “the government”) won’t allow it.

It is undeniable that a wide variety of positions exist among professional paleontologists regarding commercial collecting, just as it is undeniable that the Society for Vertebrate Paleontology has attempted, for many years, to close fossil collecting off entirely to anyone who is not a “certified” professional. The extreme insistence on that position disenfranchises the entire field of invertebrate paleontology, which is generally overlooked in position-staking over fossil preservation and study, even as it alienates casual and commercial collectors. At the same time, the SVP is legitimately concerned about the egregious abuses it sees and wants to stop them, which is a goal everyone interested in paleontology should share. How do commercial collectors propose to achieve this same goal (other than insisting that abuses don’t exist or are “balanced out” by good deeds)?

            When words and phrases like “academics,” “intellectuals,” or “three-piece suits” enter the conversation about fossil collecting and commerce, meanwhile, they are almost invariably dog whistles. For whatever reason, some Americans have let themselves be convinced that “book larnin’” is the enemy of the “common man,” a juvenile and dangerous bit of propaganda. In professional and avocational paleontology, such language has come to indicate the distinction between the “cowboys” and “frontiersmen” who are close to the earth from which they are eking out a living, on the one hand, and carpetbagging, Ivy League, trust-fund snobs on the other. But straw-men aren’t getting anybody anywhere.

            “Government” is similar. “Government” is code for taxes, regulation, and limitation (bad), while its opposite is “liberty” (good), which, in practice, is nearly always defined solely as a personal right that others are bound to honor, even if threats or violence are required to get them to do so. In the context of fossil collecting, to be fair, “government”—mostly meaning paleontology-related legislation enacted at federal, state, or local levels and applied through the regulations of an alphabet soup of agencies—has frequently shown itself to be a blunt and clumsy instrument. Legislators may typically not know much about paleontology, and so they are swayed by whichever “experts” have their ears. Fossils probably need their own a lobbyist who is neither a scientist nor a collector nor a vendor. Until that happens, the “Seven Kingdoms” approach to legislation and to regulation—whose bannermen form the most powerful army—is singularly incapable of producing equitable solutions.

Assumptions of authority

6.  Any specimen that is never collected and is lost to the elements or to development justifies all efforts to collect fossils privately off any land and, especially, to profit from them; and

7.  The fact that there are unstudied specimens in university and museum vaults means that any attempt at conservation or husbandry of fossil resources is wrong.

Both of these myths are based upon assertions of morality and of “assumptions of authority,” as Elizabeth Jones, at the Department of Forestry and Environmental Resources at North Carolina State University, called them in an intriguing analysis of the case of Sue the T. rex. Jones traced a decade of litigation and four separate trials all aimed at answering the question “Who owns Sue?” (see Jones’ Section 2 for an excellent chronology of the case). In examining the “assumptions” of the interested parties, she wrote:

[The] complex network of individuals involved in Sue’s story [ranged] from academic paleontologists and commercial collectors to private citizens, government officials, Native Americans, and the general public. The legal battle over Sue typifies the debate over fossil access in the United States, and the role of scientists and fossil dealers in accessing exceptional fossil finds…. Both individuals and groups staked claim over Sue but justified those claims through different arguments based on different values and assumptions of authority. [Peter] Larson and the [Black Hills Institute of Geological Research, owned by Peter Larson and his brother, Neal], for example, assumed authority over Sue in terms of ownership and expertise. The United States Department of Justice and Department of Interior, along with the Cheyenne River Sioux Tribe, assumed ownership for legal[37] reasons. Scientists, particularly paleontologists of [the Society for Vertebrate Paleontology], assumed authority over Sue on the basis of the specimen’s research value, their own scientific expertise, and the need for public accessibility…. Further, regulatory and legislative attempts to control fossil access on government property both before and after Sue’s discovery were laden with assumptions of authority regarding the proper relationship between science and capitalism. (Jones, 2019: 9, 24)

            In the controversy over revision of the Paleontological Resource Preservation Act (PRPA), first debated under that name in 2001 and finally adopted in 2009, Jones identified additional “assumptions.” The 2009 PRPA included a provision that required would-be collectors on public lands to apply and be approved for a collecting permit, though avocational collectors could collect a “reasonable amount” of “common invertebrate and plant paleontological resources,” meaning that

[t]he Secretary [of the Interior] … assumed authority for determining what it meant to be qualified applicant, as well as the meaning of terms like “reasonable amount” and “common invertebrate and plant paleontological resources” [and] the PRPA reinforced scientists’ authority in terms of assumed expertise and legal access to fossils on public land. (Jones, 2019: 18-19)

            Jones didn’t mention, though she might have, the assumption of the AAPS which, along with the American Lands Institute, the American Federation Mineralogical Societies, and many commercial mineral companies, opposed the PRPA (Malmsheimer & Hilfinger, 2003). And that is the assumption that commercial collectors deserve authority over fossils collected on public lands, including the authority to make a profit from them, despite the fact that they are literally public property. There seems something unassailable about maintaining, even if only as a matter of principle, that fossils found on public land should not automatically be made available for private profit, but the anti-PRPA groups had additional arguments to make. They also feared the PRPA would

cause “fossils [to] disintegrate shortly after their exposure by erosion” because the bill will “make … public land[s] a hunting preserve for a privileged few at the expense of permanent loss of most fossils to erosion;” [and] require U.S. museums, which “already have more material than they have staff or monies to house, curate, or exhibit,” to hold the paleontological resources collected from public lands. (Malmsheimer & Hilfinger, 2003)

            Writing in the related context of institutional archaeological collecting in Finders Keepers, Craig Childs confirms similar concerns. “Everything that is removed goes somewhere, he wrote, and

[m]uch of what has been dug remains undeciphered and unreconstructed. Excavation spoils are piling up. Every major public repository in Arizona will have topped out in five to ten years, a problem faced by institutions across the country and around the world, yet more keeps coming in as cardboard boxes and bags of specimens heap onto each other in storage. Smaller collections across the country can hardly afford to curate what has already been delivered. The U.S. Army Corps of Engineers oversees 50,000 cubic feet of artifacts from field recoveries, and three-quarters of this collection is improperly stored, most of it steadily deteriorating….[38] In the United States, we now have over 200 million individually catalogued objects in the public trust. In addition, there are 2.6 million cubic feet of artifacts stored in bulk whose individual pieces have yet to be catalogued, which comes out to about 1,300 semi truckloads of potsherds, beads, bones, shells, feathers, and buttons. This is what institutional obsession looks like. (2010: 141-142)[39]

            These points are repeated in a nearly infinite variety of versions in AAPS literature and by commercial collectors. In “What Commercial Fossil Dealers Contribute to the Science of Paleontology,” published in the AAPS’s Journal of Paleontological Sciences, for instance, the authors wrote that “Any fossil saved from nature is a fossil saved for future generations [because] fossils left in the ground weather away and are lost” (Larson et al., 2014).

            The group quoted an even more dire warning by David Martill, a paleobiologist at the University of Portsmouth in the United Kingdom: If fossil collecting were not allowed for “everyone in all countries … specimens will be lost forever and the science will die” (2011; emphasis added).

            The thought that uncollected fossils will just “sit there and be destroyed by the elements” or that collected ones will “languish in a museum vault, never to be seen or studied,” is painful. At the same time, the reality that museums have more paleontological specimens than they can catalogue or display, or that some fossils are destroyed by natural forces, does not lead to the inescapable conclusion that private individuals have a “right” to ownership of them for the purposes of personal profit (or that researchers have a “right” to remove them to their labs, where they may also sink from view). Nor must we inevitably agree that the solution to the chronic lack of “staff or monies” that makes it difficult for museums to curate their collections is to let fossil dealers sell, for private profit, the fossils that would otherwise be ignored in dusty drawers.

            In 2014, Peter Larson and Donna Russell wrote that

A recent Gallup poll … shows that 46% of Americans believe that God created humans in their present form. The same poll revealed that 66% of Americans believe that the Earth is less than 10,000 years old. Fifty-four percent believe that creationism should be taught in schools. The challenges that our discipline faces are grave and we need a united front so that we might work together to make fossils more available to the general public, in museums and private collections, so that more people can touch, learn and understand the beautiful story that is the evolutionary history of life on Earth.

            It’s a noble thought, but fossils in private collections, especially if those collections are overseas—never mind the ones that are transformed into fireplace mantels or paperweights—are infrequently “available to the general public”[40] or for scientific study anyway, nor are they necessarily “saved for future generations” or for the general benefit.[41] Fossil commerce can also be a way to make fossils “disappear” and does not, in and of itself, necessarily represent an advantage over museum storage or natural destruction.

            Meanwhile, commercial collectors who almost literally vacuum up every last tooth, fragment of petrified wood, leaf, bone, or trilobite at a site or are storing tens of thousands of specimens for sale do so not because they want to help the public have access to fossils but because they are safeguarding a commercial inventory. There’s no need to judge that behavior as good or bad, but there’s no reason to pretend it’s synonymous with altruism either.

            To put it in other terms, the only way to address these realities is not necessarily to grant authority over public paleontological materials to private commercial fossil dealers who assume they are entitled to advance such a claim because they will do something “useful” with the fossils—namely, turn them into cash.

Above and below: Fossils on sale at the Tucson Gem & Mineral Show. CC License 2.0.

            Here are some other proposals: museums and universities could cull specimens they deem no longer useful for public education or research and sell them to raise money for proper curation efforts and increased staff.[42] Alternatively, they could donate those specimens to private and casual collectors who, in light of the growing difficulty of finding publicly accessible collecting sites, would welcome adding to their collections, or to schools and public-education programs. As a corollary, all sales of fossils by dealers could be taxed a small fraction of a percentage to resolve the problem of under-funded museums and provide them the resources they need to manage their collections properly.

            These suggestions are made casually, without any deep consideration of their impact, but they serve to underscore the point that “free market” access to fossils (especially publicly owned fossils) is not the only possible approach. Meanwhile, such possibilities may not be as crazy as they sound. Paleontologist Phil Currie at the University of Alberta in Edmonton, Canada, proposed that the United States create a “philanthropic fund to buy legally collected private specimens and place them in US museums” in order to make sure that scientifically important specimens collected on private land end up in public collections (Pickrell, 2018).

The end of expertise

If it has done anything, the COVID-19 pandemic has made clear the way in which questions of public health and epidemiology can be transformed into political debates over “rights” and “tyranny.” The conflict is sometimes viewed as an extension of the so-called “anti-science bias” that seems to have gripped the United States and much of the world in the guise of arguments about climate change, vaccinations, the shape of the planet, the teaching of evolution, and other questions.

            To be sure, ignoring information about how disease is transmitted or how physicists determine that the Earth is a sphere can be the result of an anti-science stance, but a more basic reason may be the belief that experts cannot be trusted (because they have “secret agendas”) or that they offer nothing more than “opinions” which are no more valid or reliable than those of any other person. More relevant still to the context of professional and avocational paleontology is what Tom Nichols called the “death of expertise” in his 2017 book of the same name:

I fear we are witnessing the death of the ideal of expertise itself, a Google-fueled, Wikipedia-based, blog-sodden collapse of any division between professionals and lay people, students and teachers, knowers and wonderers—in other words, between those of any achievement in an area and those with none at all. (2017: 3)

            One of the most common assertions by commercial collectors, echoed in AAPS materials, is that commercial collectors know just as much as “professional” or “academic” scientists. The vexing term “commercial paleontologist” has taken hold, though people who sell specialized equipment for orthodontists don’t call themselves “commercial dentists,” and professional landscapers or nursery keepers don’t typically demand to be known as “commercial botanists.” As a kind of reverse discourse intended to disarm disrespect and to emphasize commitment, experience, and skill, it’s an understandable strategy. But it still causes, as Nichols put it, the collapse of a distinction that doesn’t really deserve to fall. Yes, someone who has been digging trilobites out of a quarry in Michigan for twenty years certainly knows more about the species of trilobites found there, about how they are preserved in that exposure, and about the fauna and flora typically associated with them than does a vertebrate paleontologist whose career has been spent on Jurassic corals. But that doesn’t make him a paleontologist.

            And yet this refusal to acknowledge one kind of expertise—in order to insist upon another—is a common tactic in the fossil-dealer wars. Mike Triebold told Wired in 2018, “There are some people in academia that think that if you’re not a degreed paleontologist, you’re not qualified to work on [dinosaurs]. That’s absolute hogwash. It’s bullshit” (Reynolds, 2018). Five years earlier, Triebold told High Country News that he “believes data collection by commercial operations can be superior to that done by academic institutions strapped by budgets and bureaucracy” (Hodges, 2013).

            In 2014, Kenshu Shimada (DePaul University and Sternberg Museum of Natural History), Philip Currie (University of Alberta), Eric Scott (Division of Geological Sciences, San Bernardino County Museum), and Stuart Sumida (California State University, San Bernardino) published an article entitled “The Greatest Challenge to 21st Century Paleontology: When Commercialization of Fossils Threatens the Science” in Palaeontologia Electronica. Peter Larson of the Black Hills Institute of Geological Research and Donna Russell of Geological Enterprises responded a month later in the same journal, and Neal Larson, at the time the President of AAPS, along with Walter Stein, the owner of PaleoAdventures; Michael Triebold, the president of Triebold Paleontology; and George Winters, AAPS’s Administrative Director, developed the response into a longer essay that appeared in the AAPS’s Journal of Paleontological Sciences in October 2014.

            Neal Larson’s group wrote:

There is a common misconception among many academic paleontologists … (Shimada et al. included) that commercial collectors are not professionals, nor true paleontologists….[43] As independent commercial paleontologists and members of the Association of Applied Paleontological Sciences (AAPS), many of us make our living in paleontology mostly in collection, preparation and display. While only a few independent paleontologists have a degreed education in the field, many have extensive training, especially in collection and preparation of fossils…. Some independent paleontologists have published, working both alone and in conjunction with academic paleontologists to report discoveries, describe new species, and publish on the taxonomy, taphonomy, biostratigraphy, biology and geology of the fossils and rocks we work with.

            Peter Larson and Kristin Donnan (2014), meanwhile, writing in their book, Rex Appeal, Larson’s version of the saga of Sue the T. rex and his conviction on charges of fossil trafficking and customs violations unrelated to Sue, argued that “the demonization and marginalization of a specific portion of the paleontological community is the result of misunderstanding, misplaced entitlement and simple intolerance” (2014; emphasis added), and they went on to say that “legitimate independent collectors … are as trained, careful and thorough as academic crews—often more so” (359), adding that “collectors’ affiliations or degrees should not matter; their knowledge, experience and how much they care should” (349) (the word “legitimate” is not defined).

            Lamenting the refusal of the Society for Vertebrate Paleontology to adopt the recommendations of the 1987 National Academy of Sciences’ “pro-collecting” report, which Peter Larson helped write, the authors explained that

an SVP committee circulated a position statement warning against “documented cases of unethical practices by commercial collectors, commercial operations masquerading as legitimate academic institutions, the great increase in sales of scientifically important specimens to interior decorators and hobbyists, and the rapidly inflating prices that create profound security problems for institutional collections. I [Peter Larson] know the SVP committee did not represent the entire membership in its position; only a small, vocal group wore three-piece suits. (103-104; emphasis added)

            Paleontologist Robert Bakker, who contributed the Introduction to Rex Appeal, compared Peter Larson and the personnel of the Black Hill Institute to

[t]he Sternberg family of Kansas … three generations of independent fossil hunters who were held to be saints by my professors at Yale in the 1960s. The Sternbergs eschewed the cap-and-gown trappings of university training…. But there was another element in the community of fossil scholars, a generation of Ph.D.s who had a caste mentality, a belief that only university scholars were entitled to dig precious fossils. (xi-xii)

            This way of marking out perceived power differences is a recognizable shorthand for what are most commonly imagined as class distinctions: the working man vs. the pampered, soft-palmed egghead, the blue collar rather than the white. But it’s curious in the context of what is simultaneously a challenge to and an assertion of expertise, and Bakker’s comments about “cap-and-gown trappings” are downright puzzling from a man with degrees from both Yale and Harvard.

            A similar skepticism about expertise—at least the kinds of expertise that come from “academia”—pervades Dino Hunters in which, according to the Discovery Channel’s promo, “Montana rancher Clayton Phipps and Wyoming fossil hunter Mike Harris buck the academic status quo.” On Dino Hunters, Phipps proudly tells the camera, “I don’t do the science. I’m just a cowboy who likes fossils,” and, in 2013, he told a reporter:

The (professional) bone hunters don’t have a really good reputation around here, because a lot of the academics haven’t done much for our community. They’ve come in and said, “Oh, yeah, we are going to study this,” then no one hears anything about it after they leave. (Hodges, 2013)

            It isn’t clear how many paleontology or paleobiology journals Clayton Phipps reads on a regular basis, but that’s where one would “hear about” studies once they were completed. Nor does Dino Hunters reveal how Phipps and his company “benefit the community” in ways that are an improvement over what “academics” do. “Bucking the academic status quo,” finally, probably sounds like a reasonable pastime to someone who wants others to see him as a “cowboy” or whose goal is to “own the elites,” but what exactly is the “academic status quo” the dino hunters are “bucking”? Formal education; painstaking research that sometimes takes years; a stock of information that is both broad and deep within an area of specialization; interactions with peers doing similar work all over the world; and assertions backed by data and revised over time? If so, in 1871 Darwin said everything that needed saying about such attitudes: “ignorance more frequently begets confidence than does knowledge.”

            Skirmishes such as these, in any case, typically take place on the perceived borderlands between professions and spheres of expertise, and Elizabeth Jones noted that fossils themselves were one of the foci of “boundary work” in paleontology—that is, the “process … by which individuals and groups constructed or deconstructed boundaries concerning fossil access, then implemented and enforced those boundaries in order to establish authority” (4). Fossils can be shared and appreciated across boundaries (by scientists, avocational collectors, and vendors, in this case), but their meaning and importance are vastly different to each group.

            Law professor Alexa Chew argued that

[t]here are at least three ways to assign value to a fossil: economic, scientific, and cultural. Preserving one type of value may limit or destroy the others. For example, digging up a fossil as quickly as possible to rush it to market may maximize economic value, but it can destroy scientific value. For private collectors, the value of a fossil is inherent in the object itself; its value is akin to that of a piece of art…. For scientists, however, the value of a fossil is usually contextual. Most paleontological research focuses not only on the fossil itself [and] …. [w]ithout contextual information, evidence of how extinct organisms lived is lost…. Finally, a fossil’s cultural value reflects its importance to the larger community. The value of certain objects transcends market value or scientific discovery to become part of collective knowledge and experience. Such objects, including fossils, intuitively belong within the public domain” (Chew, 2005: 1033-1034)[44]

            No different—and no less subject to conflicts and hostile interpretations—are the ways in which each area “develop[s] … and enforce[es] a clear set of methods to ‘discipline’ the information [that comes from fossils]” (Jones, 2020: 10).

            Quoting Thomas Gieryn, professor emeritus of sociology at Indiana University, Jones expanded on the idea, noting that

boundary-work is a process by which scientists construct, deconstruct, and negotiate definitions of what (in their view) gets to count as science. But as [Gieryn] argued, there is no one way to do science … [and] ‘boundary-work becomes a means of social control.’ … In particular, scientists build boundaries when they feel their authority is at stake. In many cases, scientists are seeking to defend their interests by demarcating their work from other interests they consider to be non-scientific at best or detrimental to science at worst. (21)

            In “Fossil Wars,” Paige Williams, author of The Dinosaur Artist, summarized the “stark opposing arguments” this way:

Commerce: overregulation destroys the public’s interest in the natural world.
Science: commodification compromises our evolving understanding of the planet.

Commerce: science doesn’t need hundreds or even dozens of specimens of one species.
Science: multiple specimens elucidate an organism and its environment over time.

Commerce: private collectors wind up donating their stuff to museums anyway.
Science: specimens collected under nonscientific conditions are worthless to research.

Commerce: most museum fossils land in storage, never to be studied.
Science: stored fossils have generated profound advances decades after their discovery.

Commerce: scientists are stingy and elitist, with their snooty PhDs.
Science: commercial hunters are destructive and greedy. (Williams, 2018b)

            There’s no point denying the existence of professional paleontologists who, like scientists in allied fields, look with disdain on unaccredited collectors and commercial dealers, nor that they defend their perceived “territories.”

            What becomes blatantly obvious in analyzing the “fossil-commerce wars,” though, is that commercial collectors, particularly in the formal forum offered by a trade organization, are engaged in precisely the same process: constructing and policing boundaries to separate their work from actions they consider to be anti-commerce, unconstitutional, elitist, unscientific, or detrimental to their economic interests.[45]

            To put the finest point possible on these matters, Larson and Donnan included an appendix in Rex Appeal: “The Modern Bone War.” In it, they present a table that separates what they considered the “establishment view” of commercial fossil collecting from the “independent view”—a prolonged exercise in boundary work. A good bit of what they characterize as the “establishment view” is a series of straw men, and much of the “independent view” is either personal opinion asserted without evidence or fails to respond logically to the positions they accuse the “establishment” of holding. Where points of friction exist, the “independent view” remains an argument for the expertise of non-scientists and for the “authority” they claim over “establishment” expertise.

What is to be done?

Selling fossils is not per se a moral issue—and the AAPS would likely agree. But commercial practices can be immoral, unethical, or illegal. Virtually no one would argue that selling pizza is a moral question, but deliberately selling pizza with cheese known to be contaminated is immoral, and selling pizza stolen from a competitor is both unethical and illegal. But none of those issues turns the selling of pizza, in and of itself, into a moral quandary. So let’s stop pretending that’s the issue with fossils. The questions should be, instead, what are the broader consequences of selling fossils? What limitations on fossil commerce can exist side-by-side with reasonable opportunities for casual collecting, scientific study, and ethical bartering, selling, and buying? What impact do market demand, collecting, and the potential for over-collecting have on fossils as a natural resource; on other human beings; and on the ability to increase knowledge and to preserve and disseminate information about natural heritage?

            But neither is fossil collecting a “right.” It is a claim on a natural resource, and it can be managed in substantially the same way as are other, similar claims for control over or access to resources. The majority of the individuals who assert “rights” in these matters, meanwhile, are men of a remarkably similar ethos, and it cannot continue to escape us how often the issues of possession, sovereignty, entitlement, and territory (that is, figurative and literal power) underlie what are disguised as more “secular” conflicts over science vs. commerce, professionals vs. amateurs, enforcement vs. cooperation, institutional authority vs. personal passion.

            The reality is that none of us owns or controls anything for very long—something on the order of six or seven decades, if we’re lucky. Particularly in the realm of fossils—which existed tens and even hundreds of millions of years before human beings and will presumably exist long after we’re gone—the singular focus on ownership, control, and “rights” seems both absurd and petty.

            Writer and Graduate Director of World Cultures and Literature at the University of Houston, Alessandro Carrera, addressed these considerations in a 2020 essay. “The snake in the Garden of Eden is that terrible little word, ‘rights,’” he wrote.

[R]ights exist as such before the law, not before the community. With regard to the community, an individual has only obligations, and the community has obligations to him or her…. The confusion between rights and obligations always destroys communities…. Along with puritanism and the claim to an “illuminist” personal enlightenment inaccessible to the rest of humankind, extreme libertarianism—meaning the total rejection of the idea of civil society (one based on obligations and not on rights)—has played a part in making American what it has been and what it is today. (Carrera, 2020)

            In such a context, the entire debate about fossil collecting, sales, and ownership becomes distorted, and resolution is hopeless as long as the crux of the matter must remain whether scientists have the right, or avocational collectors have the right, or commercial fossil dealers have the right. The more crucial questions are: On what basis do any of them assert a right (or, more philosophically, on what basis do they assert a right to assert a right?)? What obligations do they recognize to others interested in the same “goods,” and how do they plan to honor them?

            The commercial fossil dealer has a duty to respond to the concerns of the scientist and the avocational collector, whose interests are no less important because they do not involve commerce or real estate. The avocational collector has a duty to scientists and to commercial collectors, who often make casual collecting possible. The scientist has a duty to the private collector and to the person who makes a living from fossil sales, both of whom are frequently allies and partners. And all three have a duty to their communities and to the Earth in the broadest sense of the word: its ancient and recent past, its integrity and health, its fragility and uniqueness, its human and non-human inhabitants, and its future, which stretches far beyond the lifetimes of any individual fossil dealer, amateur collector, or paleontologist reading these words.

            Fossils are a finite, non-renewable natural resource. That is simply a fact. Fossils are subject to erosion, the elements, and damage from land development and industry, but they are also vulnerable to over-collection, vandalism, and commercial exploitation. They deserve oversight. (Yes, some fossils are extremely abundant, but that doesn’t make them either renewable or infinite.) U.S. and international laws and treaties recognize the importance of reducing harm to the natural world (deforestation, water quality, overfishing, habitat destruction) as well as of monitoring the exploitation of plants, marine and other mollusks, seahorses, ornamental fish, exotic or endangered animals, and other species.

            In fact, since at least the 1980s, legislation and regulation at both the single-country and international level have been adopted to address the harm to organisms that are affected by over-harvesting for commercial sale. There is essentially no disagreement that the commercial trade in seashells has reduced both populations and catch rates, for example, or that it is driving some species to extinction (see, e.g., Deines, 2018). Commercial shelling is closely analogous to commercial fossil collecting, and the same objections to regulation are raised by dealers and exporters. But if governments have so widely recognized that regulation is necessary to protect literally thousands of species of animals and plants, the need for similar oversight regarding fossils seems self-explanatory. Martill (2011) and his adherents insist that fossils don’t need protection because they’re dead, but that’s a sophist’s argument. It’s precisely because they are dead—and because they cannot “bounce back” if left alone—that regulation is essential.

            At the same time, “all fossils are rare” and “fossils aren’t at all rare” are both falsehoods. When asserted, they are expressions of personal, non-empirical positions about nature, and they are too vague to be taken seriously. Some fossils are abundant; some fossils are not. A strict preservation ethic is inappropriate for common fossils, even if it is appropriate for rare ones.[46] Treating common fossils as if they were rare impedes research and harms avocational, non-commercial collecting. Treating rare fossils as if they were common excuses haphazard collection methods, robs science of opportunities to increase knowledge, tends to reduce access to fossils to those with means, and provides a handy excuse for sidestepping the issue of (all) collectors’ responsibility to the public trust.

            In a similar vein, asserting that commercial collecting has zero impact on fossil resources, on the environment, and on other living things, including human beings, is hopelessly (or willfully) naïve. To persist in that conviction is to signal the belief that private advantages and personal interests are inherently more valid than the concerns of a wider community, that opinion deserves more serious consideration than expertise; and that stubborn refusal to acknowledge the effects of actions on other individuals or groups is more “principled” than thoughtful reflection or a sense of general regard—in other words, that rights are more meaningful than obligations. Each and every one of these is a moral choice, not a business decision or a political position.

            A more promising approach may be to think of fossils as a “commons.” That doesn’t mean everyone owns everything or that the “state” owns everything—or any of the other nightmare scenarios that such a word may evoke among those convinced that “socialists” lurk behind every bush. Rather, it means that certain cultural and natural resources are shared, and that groups of individuals (communities, groups of users) manage those resources for individual and collective benefit. Every brachiopod pulled from a southwestern Ohio roadcut probably doesn’t need managing, but some fossils—and access to some fossils—clearly do.

            For such a fossil-resource-management strategy to work, all the principals will have to abandon the view that the world was made for them to own, to control, and to dispose of as they personally see fit. They’ll have to move beyond the narcissistic certainty of their own exceptionalism—bad actors may exist, but they are good; others may be motivated by base impulses, but theirs are pure; others may have a claim on goods and resources, but theirs are more valid. Fantasies of personal dominion over the earth must be surrendered, and “don’t tread on me” has to be replaced by an understanding of duties to other people, the community, the planet, and the future.

            This is not a battle that must be won or a point that must be proven. It is a consensus that must be reached. Pious calls to “work together” are pointless if what they mean is that others should work to come around to your position.

            Considerations such as these may seem a long way from the question of whether to sell fossils or own fossils or conserve fossils as a national and scientific legacy, but they aren’t: they are the absolute heart of the matter.

How now, fossil trade?

The elements that follow are essential to the code of ethics of any professional or trade organization that intends to represent commercial fossil collectors, propose or oppose laws, or otherwise advocate on behalf of commercial collectors. They’re no less essential to casual collectors or to avocational fossil-and-mineral groups because collectors of every kind could benefit from a broader concept of ethics and responsibility in the context of paleontological resources.

  • Recognize that fossils are a finite and limited natural resource, and that only a long-term ecological approach to their management can serve as the foundation for discussions regarding law and policy. Failing to be concerned about the natural environment in the 21st century is like failing to be concerned about the Black Death in Europe in the 14th, and a conversation that does not acknowledge fossils as an natural resource—and not simply as a product to market, a treasure to hoard, or a statistical data point—is a useless one.
  • Acknowledge that the impact of commercial collecting cannot be neutral, no more than it can be solely beneficial or solely detrimental. It cross-fertilizes and is cross-fertilized by other realities. Only in that wider framework can dealers, collectors, and scientists assume responsibility for the broad, interconnected impact of the fossil market, and only then can professional societies, trade associations, accredited paleontologists, business owners, and civilian scientists craft equitable, sustainable approaches to fossil collecting and commerce.
  • Adopt and enforce a strict, meaningful provenance requirement. Oblige members to possess proof of provenance for every fossil or mineral they sell or barter (and to display or provide that proof to buyers) with a value above a limit to be established.[47]
  • Adopt a regulation that clearly prohibits the false labeling of paleontological materials sold by members, including whether specimens have been restored, reconstructed, repaired, or composited. Establish an enforcement mechanism that includes, where applicable, the automatic reporting of violations to law enforcement.
  • Introduce a paid permitting system for commercial collecting and selling, with funds earmarked for public natural history museums, and work for its adoption nationally,
  • As a question of professional ethics, a member who works for or runs a museum should not also be a dealer in the things curated in the museum.
  • Deny membership to anyone who has been convicted of any crime related to fossil commerce.
  • As an organization, join and support boycotts of, prohibitions against, and oversight regarding merchandise like Burmese amber and ivory rather than grudgingly acknowledge protection efforts as “noble causes” while still implying that their most important impact is harm to business.
  • Release statements, write articles, send emails to members, and post on social media whenever a case of smuggling, theft, inappropriate collecting practices, or bad dealer behavior comes to light and educate the public about why the behavior is unacceptable.
  • Voluntarily cooperate with any government agency in investigations of smuggling, poaching, or other misconduct.
  • Prohibit members from participating in trade shows or fairs in which other dealers do not comply with these guidelines.

            To piggyback onto a phrase that has been used recently in a different context: I honestly don’t know how to convince the leadership of AAPS or other commercial or avocational fossil collectors that they should care about the welfare of the natural world, about endangered species, about other people, about the loss to science of important fossils, and about the risks of unregulated commerce. All I know is that not caring is a choice, and the implications of that choice are staggering.

— Wendell Ricketts

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[1] Compare the modifications to this version of the AAPS Code of Ethics with the version published along with the 1987 recommendations of the Committee on Guidelines for Paleontological Collecting of the National Academy of Sciences: “All members of the American Association of Paleontological Suppliers [as the AAPS was then called] will: 1. Stay informed of and comply with all Federal, State and Local regulations pertaining to collecting activities and general business practices; 2. Obtain permission from land owners or governmental authorities to gain access to collecting sites; 3. Obtain approval of Tribal as well as Federal authorities for access to lands within Indian reservation boundaries; 4. Assure that all lands, properties, flora and fauna are left without damage to property or ecology as a result of collecting activities; 5. Take every precaution to guard against fire and remove all litter from study or collecting areas; 6. Encourage the use of safety procedures and protective equipment in potentially hazardous collecting areas; 7. Require that all fossil materials received from outside collectors are obtained in compliance with the above collecting guidelines set forth by the Association; 8. Report to proper local authorities any significant discoveries of scientific or public interest; 9. Strive to place specimens of unique scientific interest into responsible hands for study, research, and preservation; 10. Make no misrepresentation as to identity, locality, age, formation, repairs or restorations of paleontological specimens; 11. Conform to professional business practices when obtaining and disposing of specimens; 12. Maintain a good credit standing among fellow suppliers of earth science materials; 13. Encourage good relations and cooperation with agencies, institutions, and organizations actively involved in paleontological pursuits” (54-55).

[2] Myhrvold owns a T. rex skeleton that is displayed in the living room of his $31 million mansion in Medina, Washington.

[3] “Actor Russell Crowe is auctioning off more than 200 of his personal items following his divorce from Danielle Spencer, including …. the mounted skull of a Mosasaur that Crowe ‘acquired from’ DiCaprio in 2008” (Lynch, 2018).

[4] “In Dubai, an 80-foot-long Diplodocus is the star attraction of a shopping mall. And in Santa Barbara, California, one of the best Tyrannosaurus skulls ever found sits in the lobby of a software company, glowering, fangs bared, at the indifferent receptionist seated just opposite” (Conniff, 2019).

[5] “There are no typical customers,” says art dealer, Luca Cableri, “who sells dinosaur fossils among other curiosities through his gallery, Theatrum Mundi, in Arezzo, Italy, though “he has sold relics to several castle owners in France who were looking to spruce up their homes and attract more visitors” (Brown, 2019).

[6] Between 2018 and 2019, eBay reported a 42% increase in the sale of mosasaur pieces in the UK and a 22% increase overall in fossil sales (Timmins, 2019). A conservative estimate of individual and small-business pages dedicated to the sale of fossils on Facebook is more than 290 (in English), not counting untold numbers of fossil-related groups whose members advertised fossils for sale.

[7] Triebold was responding to an article in Nature by editor Mike Hopkin (2007) that had criticized the AAPS for, in part, giving its new publication a misleading name. Because the “Journal of Paleontological Sciences” was a trade journal written by nonscientists for nonscientists, Hopkin noted fears (not entirely unreasonable) among academics that the publication would “give a sheen of scientific legitimacy to the dealings of commercial fossil hunters,” and, less coherently, that it would energize the black market in fossils and encourage avocational and professional fossil collectors to keep important specimens out of the public domain.

[8] In the context of Triebold’s and AAPS’s insistence that commercial fossil dealers only help science, it’s worth noting that Leidy, at the time director of the Academy of Natural Sciences, wrote in a letter in the late 1880s: “Professors [Othniel Charles] Marsh and [Edward Drinker], Cope, with their long purses, offer money for what used to come to me for nothing, and in that respect I cannot compete with them” (quoted in Milstein, 1992). Lazerwitz cites additional cases in which commercial interests preempted scientific research: A Harvard University dig in was disrupted when the site was raided, removing most of a dinosaur fossil that the academics had uncovered; a Hadrosaurus nesting site on a private ranch in Montana was lost to science when a commercial dealer offered the landowners more money for access to the site; the North Dakota Geological Survey reported that a rancher in the state attempted to excavate a rare Torosaurus on his land, destroying it in the process, after he learned the potential value of the fossil (1994, at notes 33-35).

[9] Eagle’s accusation that professional paleontologists sometimes disregard regulations regarding fossil collecting is not without basis in fact. A federal indictment in November 1993 “named the Smithsonian Institution in Washington and the Field Museum of Natural History in Chicago as buyers of fossils excavated illegally from Federal lands…. [The museums were not prosecuted] because they had cooperated with investigators” (Browne, 1994, C9). Given that the museums were “buyers” of fossils, the sellers were presumably commercial dealers.

[10] E. Espinoza, (personal communication, 6 July 2020).

[11] “[T]he ivory trade (and therefore elephant poaching activity) is driven by demand…. Higher ivory market prices lead to higher poaching incentives, and therefore greater numbers of elephants being killed” (Sosnowskia, 2019:392); “[According to] Robert Hormats, a senior State Department official, ‘Without the demand from China, this [poaching increases in elephant-rich areas] would all but dry up’” (Gettleman, 2012); “A Zambian wildlife crimes tracker told Oxpeckers that poachers who have flooded the region over the past three years are responding directly to heightened demand for ivory from locally based Chinese ivory trafficking syndicates” (Nkala, 2016).

[12] Evidence may be coming, however. CITES failed to adopt a total ban on mammoth ivory in 2019 but will reconsider the issue in 2022, after a study of the effect of the mammoth ivory trade on global ivory markets has been completed.

[13] In 2019, the Animal Law Committee of the New York City Bar Association issued a formal Report on How Mammoth Ivory Contributes to Elephant Poaching, noting that “prohibiting trade in mammoth ivory makes it more difficult for traders of illegal elephant ivory to escape detection…. [T]o avoid being caught, smugglers often try to pass off elephant ivory as mammoth ivory or identify elephant ivory as mammoth ivory on shipment documentation…. Second, allowing trade in any ivory likely increases the overall demand for ivory, and poaching in turn rises to meet that demand…. Significantly, to the extent that recent state laws reduce the illegal ivory trade, they also help combat criminality and terrorism. The illegal ivory trade is closely linked to the drug trade, money-laundering, weapons trafficking, trading, and governmental corruption” (“Report on How Mammoth Ivory Contributes,” 2019).

[14] In fact, one could be forgiven for concluding that the AAPS sometimes seems to take a fairly untroubled view of black markets, which might be considered alarming for an organization that considers “ethical commerce” vital. In a 2014 article in The Journal of Paleontological Sciences, AAPS leaders and members Neal Larson, Walter Stein, Michael Triebold, and George Winters commented that “In Brazil, China and many places elsewhere in the world, fossils are not allowed to be collected without fines, imprisonment or worse. This has not stopped the local population from excavating fossils. In many cases these laws have simply driven fossil trade underground to the black market where no one benefits” (Larson et al., 2014). Of course, it’s naïve to claim that “no one benefits” from the black market; in fact, someone always does—illegally. The Larson group was likely basing its opinion in part on the views of British paleobiologist David Martill, who, writing in 2011 about the smuggling of Brazilian fossils, said: “Sadly, Brazil as a country suffers from endemic corruption, which is a way of life in parts of the country…. This corruption permits a global fossil-exporting industry worth millions to flourish. Some people … think such a trade is ‘a bad thing’ and want it stopped. I don’t: I want to see it expanded…. [T]o protect Brazil’s fossil heritage from commercial dealers … you need to stamp out Brazil’s grass-root corruption and that will never happen” (Martill, 2011). To make it plain, Martill suggests that the response to black-market fossil trading is not to institute the rule of law, prosecute corruption, lift people out of poverty, or retrain workers so they have options other than illegal commerce, but rather to abolish all laws designed to protect paleontological resources.

[15] So-called “Baltic amber” often means amber from Russia and the Ukraine, where it is mined illegally and dangerously under conditions of gang warfare, organized crime, and widespread destruction of the environment: “[Amber-mining] gangs use water pumps … to take advantage of amber’s low density. In popular regions, hundreds of gangs may mine in the same area; thousands of men pump … the soil full of water in the hope that amber will float to the top…. Illegal amber mining is causing untold environmental damage, leaving lands as barren as moonscape. Vast areas of forest have been stripped for the purpose, but it’s the mining technique itself that completely decimates the soil, making it incapable of sustaining plant life…. Due to the unregulated nature of the mining, there are little if any safety precautions taken. The pits dug are often unstable and liable to collapse, crushing or drowning miners….[T]here are widespread reports of corruption, both in the police forces and the government. Some miners claim that police officers are happy to turn a blind-eye, which may cost as much as 30% of your profit. And if you fail to pay, the police will raid your home and arrest you for illegal mining. This ensures that people become part of the ‘protection’ racket run by the police” (Lempriere, 2017).

[16] Export of raw amber from the Dominican Republic has been illegal since 1979 and, since 1989, amber with insect inclusions can’t “be exported without the consent of the National Museum of Natural History [of the Dominican Republic]” according to Katherine Gammon’s “The Human Cost of Amber” (2019).

[17] An electronic database search turned up fifty journals that published paleontological research based on Burmese amber between 2016 and the present. The majority are U.S.-based, but publications from China, the Czech Republic, Poland, Latvia, Germany, France, the Slovak Republic, Italy, Ukraine, and the UK are also represented. The fifty journals published 163 separate articles. The Elsevier journal, Cretaceous Research, whose editor-in-chief is Eduardo Koutsoukos of the Geology-Paleontology Institute for Geosciences at Heidelberg University, Germany, accounted for 76% of these. Without querying individual authors, it isn’t possible to know whether published research was based on amber obtained since the explosion of commerce at the Tengchong bazaar or on historical collections of amber in museum and university repositories.

[18] Reporting the deaths of 126 people in a landslide at a jade mine in Kachin State, Myanmar, in July 2020, science writer Joe Bauwens noted: “Myanmar is the world’s largest producer of jade, though much of this is produced (along with other precious and semi-precious minerals such as amber) at unregulated (and often illegal) artisanal mines in the north of the country, from where it is smuggled into neighbouring China. Accidents at such mines are extremely common, due to the more-or-less total absence of any safety precautions at the site. At many sites this is made worse by the unregulated use of explosives to break up rocks, often leading to the weakening of rock faces, which can then collapse without warning. The majority of people in this industry are migrant workers from the surrounding countryside, not registered with any local authority.” (Bauwens, 2020).

[19] Various sources estimate the value of the Burmese amber market at $1 billion USD per year. The 1% figure is widely used to argue that the market for fossil-bearing amber is small. In fact, the statistic is misleading. Amber experts have noted that fossil inclusions are found in only about 1% of amber. That’s not the same as saying that the sale of fossil amber accounts for only 1% of $1 billion (even if it did, $10,000,000 would be a significant figure.) In any case, the actual percentage of Burmese amber sales attributable to the fossil market is not known and probably cannot be.

[20] The Murrays sold a nearly complete Tyrannosaurus rex found on the same land to a museum for several million dollars in 2014 as well as “a Triceratops foot for $20,000 and [they] offered to sell [a Triceratops] skull for between $200,000 and $250,000” (reported in Murray and Murray v. BEJ Minerals, LLC, and RTWF, LLC, 2020).

[21] “Dueling Dinosaurs” does not belong solely to the Murrays, however, because they contracted for a share of eventual profits with the discoverer and one of the excavators of the specimen, Clayton Phipps (who operates Dueling Dinosaurs LLC). Phipps, in turn, hired Peter Larson of the Black Hills Institute of Geological Research and the owners of CK Preparations, Chris Morrow and Katie Busch, to dig and prep the specimen. All of them will receive a portion of Phipps’ share. See Pantuso (2019).

[22] Some fossil dealers disagree with this assessment. What can be said without controversy, however, is that the 9th Circuit opinion was completely silent on the question of whether the ruling was intended to be retroactive. That doesn’t mean lawsuits may not have arisen in an attempt to apply the ruling retroactively, but that is a different issue, and any statement about how such hypothetical lawsuits might have been resolved is guesswork. At the same time, the high cost of litigation strongly suggests that such conflicts would have arisen only in cases of extremely valuable fossils, which returns us to the question of the inflated economic valuation of fossils on the very “free market” that some fossil dealers so vigorously defend.

[23] In the end, Dueling Dinosaurs was not auctioned off because bids failed to meet the minimum asking price of six million dollars. [Note: In November 2020, after this article was originally published, the North Carolina Museum of Natural Sciences announced that it had acquired “Dueling Dinosaurs.” The sale is a classic good news/bad news story. By raising money through private foundations and the city, county, and state governments, the Museum was able to assure that the specimen would remain in the public domain and be accessible to scientists. Lindsay Zanno, a paleontologist at North Carolina State University, the NCMNS head of paleontology, and a key figure in negotiations with Phipps for the fossil as early as 2016, also received permission to visit the site where the fossils were found and gather the kind of information that will make the find that much more scientifically useful. That’s the good news. The less-good news is that the selling price for the specimen is reported to have been $6 million—barely a month after the Christie’s auction house sold “Stan the T. rex” for a record $31.8 million (Nielson, 2020). Thomas Carr, a paleontologist at Carthage College in Kenosha, Wisconsin, and a Tyrannosaur expert, continued to express reservations about the way that the Dueling Dinosaurs purchase had “legitimized and supported” what he sees as an “unethical trade in irreplaceable fossils.” Carr told National Geographic, “It’s good that those specimens made it into a real museum and haven’t disappeared like Stan did, but on the other hand, what was the price tag? That [sale] opens up the issue of whether or not scientists and museums have become handmaidens for the commercial fossil trade” (Greshko, 2020).]

[24] In the 2020 Discovery Channel series, Dino Hunters, Clayton Phipps lamented that he had yet to sell the Dueling Dinosaurs. Though some paleontologists say the specimen has scientific value, others reject it as useless because of the lack of ancillary data that were not recorded during excavation. Science reported that Phipps’ failed attempt to auction the Dueling Dinosaurs in 2013 has made “[m]any paleontologists fear that [he] will sell to a private collector who may not allow detailed scientific study. If that happens, ‘then someone might as well walk up to it with a sledgehammer and turn it to dust,’ says paleontologist Thomas Carr of Carthage College in Kenosha, Wisconsin” (Pringle, 2013).

[25] Heritage Auctions was involved in the sale of Eric Prokopi’s smuggled Mongolian Tarbosaurus in 2012 (see below), and maintains a vast catalogue of fossils and minerals, including Moroccan trilobites, dinosaur bones, and Spinosaurus teeth; Burmese amber; oreodont skulls; Oligocene tortoises; fossil whale and horse material; narwhal tusks; fossil (described as “antique” in the catalog) and extant elephant ivory; Messel pit birds; hadrosaur and cave bear skeletons; dinosaur tracks; Triceratops and Allosaurus skulls; ichthyosaurs, and scores of Green River fish and rays, among hundreds of other items. In 2020, Craig Kissick, Director of Nature and Science for Heritage Auctions, was elected by the AAPS as its president.

[26] See, e.g., Stucke & Ezrachi (2017) for a chronology of antitrust laws in the U.S.: “[If the country] were to continue with a “light-if-any-touch” antitrust review of mergers and a blind eye to abuse, concentration will likely increase, our well-being will decrease further, and power and profits will continue to fall into fewer hands.”

[27] Historian Jeffrey Ostler notes that the twenty-seventh and final grievance against Britain in Jefferson’s Declaration of Independence was that the Crown had “excited domestic insurrections amongst us” (meaning slave revolts) and brought “the merciless Indian savages” down on the colonists (at the time, indigenous people, supported by Britain, were violently resisting the invasion of their lands west of the Appalachian Mountains) (Ostler, 2020).

[28] The intentionally provocative comment is often made, in this context, that indigenous Americans “had no concept of private property,” one among Ayn Rand’s more notorious claims. Apart from the fact that generalizations about the cultural and legal structures of hundreds of bands, tribes, and communities are rarely useful, a somewhat more accurate statement might be that, unlike Europeans and Euro-Americans, Native Americans didn’t traditionally view land as an economic asset, and land did not typically confer power or status on individuals.

[29] According to the U. S. Census Bureau, 35% of Americans do not own homes in 2020—26% of whites, 56% of blacks, and 51% of Hispanics. These statistics have changed little over the last two decades. If the issue is land, the top 10% of households owned 82% of the country’s non-home real estate in 2017, according to the Washington Post (Ingraham, 2017).

[30] See Woodward et al. (2020). Growing up Tyrannosaurus rex: Osteohistology Refutes the Pygmy “Nanotyrannus” and Supports Ontogenetic Niche Partitioning in Juvenile Tyrannosaurus. Science Advances, 6(1). DOI: 10.1126/sciadv.aax6250.

[31] Recall that the AAPS’s Code of Ethics states: “5. Report to scientific experts any significant discoveries of scientific or public interest; 6. Strive to place specimens of unique scientific interest into responsible hands for study, research and preservation.” Interviewed about the Dueling Dinosaurs in 2013, Mike Triebold told the Colorado-based High Country News, “‘It’s in the best interest of commercial companies to be stringent data collectors so they can sell to quality museums.’ He believes data collection by commercial operations can be superior to that done by academic institutions strapped by budgets and bureaucracy” (Hodges, 2013). It can be but, as Dino Hunters demonstrates, it isn’t necessarily.

[32] See

[33] Neutrality is when one person says it is raining, another person insists it is not, and the journalist reports both assertions. Objectivity is when one person says it is raining, another person says it is not, and the journalist pokes his head out the window to see whether he gets wet.

[34] As early as 1994, the New York Times reported that the Tucson Gem and Mineral Show was the site of a federal investigation aimed at “crack[ing] down on fossil trading” and described the fair as “a trade show steeped in dispute, bitterness and litigation” (Browne, 1994, C1). Dr. William S. Clemens, a paleontologist at the University of California at Berkeley, told the Times: “I’ve been visiting the exhibits at the Tucson show this year to get a feeling for the trade, and some of the things I saw made me sick. I saw some exhibits marked with numbers similar to those used by museums, and I couldn’t help wondering whether these specimens had been looted from museums. I saw a rare amphibian fossil from Russia on sale, accompanied by a certificate from Russia’s Paleontological institute allowing export of this treasure. The Russians must certainly be hard up to let things like that go” (c1, c9).

[35] Tarbosaurus skeletons are not, in fact, common, but the sale of Mongolian fossils prior to the Prokopi case evidently was: “Other [Tarbosaurus] fossils … as well as other specimens linked to [Mongolia], are not difficult to find in auction house catalogs or on eBay…. A search for ‘dinosaur fossils Mongolia’ on eBay Wednesday (June 27 [2012]) yielded about 20 results, most of them claws” (Parry, 2012). Update: A July 2020 eBay search for “dinosaur fossils Mongolia” resulted in twelve hits. These were largely eggshell fragments but including two lots of intact fossil dinosaur eggs. A search for “fossils Mongolia” returned more than seventy items, most of them invertebrates and most of them offered for sale “from China.” The provenance of an additional seven results, including five lots of dinosaur eggs, a Psittacosaurus skeleton, and a Psittacosaurus skull, was given as “East Asia.”

[36] A .pdf version of the Paleontological Resources Preservation Act is available at

[37] For historical reasons related to tribal lands and treaties as well.

[38] “‘The U.S. Army Corps has collections that span the paleontological record,’ says Nancy Brighton, a supervisory archaeologist for the Corps. The Corps never set out to amass this prehistoric tome. Rather, the fossils—from trilobites to dinosaurs, and everything in between—came as a kind of byproduct of the Corps’ … large-scale civil engineering projects…. Jen Reardon, an archaeologist with the Corps, says ‘[M]ost of the Corps’s collection … reside[s] in local museums or universities…. ‘The Corps encourages institutions … to put their specimens on display, but there are just too many to display all at once, she adds” (Imbler, 2019).

[39] In 2008, the Institute of Museum and Library Services reported “that archives, historical societies, libraries, museums, scientific research collections, and archaeological repositories … hold 4.8 billion artifacts in public trust, of which museums hold 20%” (Manjarrez et al., 2008: 16-17).

[40] In Fall 2019, an intact and unusually well preserved a sabretooth cat skull was accepted for auction by Heritage Auctions (which had also auctioned Prokopi’s Tarbosaurus) for a minimum asking price of $843,000. The specimen had been found in the tar pits of Los Angeles twenty-two years before the La Brea Tar Pits Museum opened to the public in 1977, and remained unstudied in private collections for more than sixty years. Though the fossil was “considered one of the best examples of a sabre-toothed cat skull in existence” (Folven, 2019), bids failed to meet the minimum price and, as of July 2020, it was still listed as “not sold” in Heritage’s online catalog and remains unavailable to the public. Dr. Thomas Carr’s 2015 “T. rex List of Shame” ( includes fourteen American tyrannosaur specimens that were sold into the hands of private parties and, thus, essentially lost to science. A fifteenth, “TAD,” was privately purchased by a foundation in Hong Kong in 2018 and first displayed there at a shopping mall. In October 2020, “Stan the T. rex” sold, once again at auction and once again to an unnamed bidder, for the highest price any fossil of any kind has ever brought: close to $32 million. Almost immediately, Dr. Carr responded on his Tyrannosauroidea Central blog with an article entitled “Tyrannosaurus rex: 115 Years Old & Royally F***ed. Carr noted that the T. rex growth study he had published six months earlier had been based on “41 scientifically available specimens,” but pointed out that additional specimens in the public trust brought the total to fifty-seven—just barely over half of the potential sample population of T. rex specimens, given that “at least another 43 in the stockrooms of commercial fossil hunters and in the collections of private collectors who buy them” (Carr, 2020). As a result, Carr wrote, the sample size for T. rex was “gutted” and the study of T. rex biology was “compromised.” Carr added, “It has been claimed that commercially collected T. rex fossils inevitably make it into public trusts. This is simply not true—by my count, only seven specimens (Bucky, Wyrex, Trix, Sue and two associated T. rex bones, a partial juvenile dentary) are in public trusts.” The Larsons’ Black Hills Institute was once again involved in the excavation and ownership of Stan—as it was in the case of Sue the T. rex and as it is with regard to the “Dueling Dinos.” The BHI was forced to sell Stan by court order, following yet another of the legal disputes that seem inevitably to dog the collection of T. rex specimens.

[41]    Paleontologist Dr. David Hone wrote in 2012: “Scientists make a policy of only studying specimens held in public (generally state owned and run) museums. There are some exceptions, but in general if it’s not there, you can’t work on it, or at least journals won’t let you publish on it. That naturally gives us a lot to work with, but good, even great, specimens are in private collections and private museums. True, [private collectors and museums] do sometimes hand over their material … but there’s no guarantee they ever will…. And therein lies the problem…. In short, research is losing out massively to collectors.”

[42] This is complicated. Museum collections often yield surprising discoveries when “forgotten” material is reexamined in light of new scientific information. In 2015, for example, paleontologists Dean Lomax and Judy Massare discovered a new species of ichthyosaur in the collections of the Doncaster Museum and Art Gallery in South Yorkshire, England. The specimen was believed to be a plaster copy and had been unexamined for more than thirty years (Gil, 2015). Lightning struck a second time in 2020 when researchers recognized yet another new ichthyosaur, collected decades earlier, in storage at the Museum of Natural History in Stuttgart, Germany (“New Species,” 2020).

[43] For the sake of accuracy, Shimada and his colleagues neither wrote nor implied anything of the kind.

[44] There is one other way to assign value to fossils: for what they supposedly reveal about the Biblical flood and the age of the planet. Various groups of creationists and “Young Earthers” are among the most assiduous of fossil collectors (and buyers) and are a presence at many dig sites across the country. In 2002, an Allosaurus skull and “the claws to a 100-foot Sauropod, presently believed to be of the rare Ultrasaurus variety” were discovered in Colorado, though many details (such as who discovered the fossils and when) are disputed. As so often happens with finds of outstanding dinosaur fossils that can be sold for high-dollar amounts, this specimen ended up in litigation. When all was said and done, the specimen was donated to Ken Ham’s Creation Museum in Petersburg, Kentucky, where it “is now one of the museum’s main attractions.” After the donation, the museum reappraised the skeleton (now acknowledged as Allosaurus), and “declared its value at a million dollars…. ‘The intact skeleton of this allosaur is a testimony to a catastrophic, rapid burial, which is confirmation of the global Flood a few thousand years ago as recorded in the Bible,’ the Creation Museum says on its web site’” (Bethea, 2019).

[45] If “elitism” in the paleosciences is objectionable, there’s no better example than David Martill, on whom Larson et al. (2014) relied in part and of whose views they presumably approve. In a 2011 article in the Geological Society of London’s Geoscientist, Martill contrasted what he called the “obscene” destruction of fossils by mining companies in Brazil with the “draconian” laws that outlawed private fossil collecting and strictly regulated scientific work. In Martill’s view, it was “endemic,” “grass-root corruption” that created the global trade in Brazilian fossils and led “poor farm workers … to dig deep and dangerous excavations.” In other words, Martill made and defended a moral choice and disguised it as scientific objectivity: In pitting dangerous work conditions, systemic poverty, and corruption against science, science naturally deserved to triumph. That’s the definition of academic elitism.

[46]   Dr. David Hone, the paleontologist, science blogger, and author of The Tyrannosaur Chronicles, assessed the situation this way: “[W]ith willing buyers out there [and] many more dealers and collectors looking for fossils than the researchers … we tend not to find the best stuff, and we can’t afford to (and in many cases morally shouldn’t) buy them. In short, research is losing out massively to collectors. The problem though is a very complex one. Good fossil dealers … are quite happy to hand over, or sell at a discount, or at least give first refusal to museums for good and important specimens. Generous owners do donate their collections or individuals specimens to museums. Many people will develop an interest in palaeontology … they might not have had otherwise from the purchase or gift of some small trilobite or shark tooth and I don’t think any palaeontologist would begrudge them it. The problem lies in where this kind of dealing should stop. Selling an ammonite of a species represented by thousands or even millions of specimens? Sure, go for it. How about some new and incredible species of dinosaur, preserved with a dead mammal in [its] stomach, a set of eggs in [its] body and … skin and feathers? Absolutely not. What about a dinosaur foot though? Or half a skull? Or a single caudal? Or a broken tooth? Every specimen can add some information … but there is understandably a huge grey area … that is only compounded by confusing laws and regulations…. Where does this leave us? In a mess frankly, but … the lack of clear national and international regulations and the lack of enforcement means that valuable specimens are being lost to science.”

[47] “Paleontologists … are pleading with private collectors to demand proof of a fossil’s origins before they buy—just as they would question the pedigree of a painting or an antique…. I’m saying, ‘Ask for provenance,’ [Dr. Mark A. Norell, Chairman of Paleontology at the American Museum of Natural History] said. ‘It worked in the art world, but it hasn’t hit the fossil world.’”