While local landowners have long questioned and fought over who owns the coal or the oil and gas under their land, a case pending in the Supreme Court of Montana puts a little more bite into the surface owner vs. mineral owner distinction. As many of us know now, the issue of who owns the surface of land and who owns the minerals underneath can mean a lot of money and can also mean a lot in terms of what rights a mineral owner has to the surface estate. What happens, though, if you find fossilized dinosaurs on your land? Who owns that? A ranching couple in Montana made such a discovery after they purchased a ranch and 1/3 of the ranch’s mineral rights in 2005. The sellers had kept 2/3 of the mineral rights when they sold the surface. Not long after the sale two sets of fossilized dinosaur bones were found on the land. The two dinosaur skeletons seemed to be tangled in a fight to the death that neither would win. The surface owners are now in a legal fight seeking to claim sole ownership of the find.
The landowners tried to sell the fossils and even had a $6,000,000 offer on the table, but the buyer wanted assurances that the landowners were the proper owners. In 2016 a Federal judge ruled in favor of the surface owner finding that the fossils were not to be considered minerals. On appeal, the 9th Circuit Court of Appeals ruled that the minerals were, indeed, to be considered minerals. The interesting subject matter gave the appellate court the chance to issue an entertaining opinion: “Once upon a time, in a place now known as Montana, dinosaurs roamed the land[.] . . On a fateful day, some 66 million years ago, two such creatures, a 22-foot-long theropod and a 28- foot-long ceratopsian, engaged in mortal combat. While history has not recorded the circumstances surrounding this encounter, the remnants of these Cretaceous species, interlocked in combat, became entombed under a pile of sandstone. That was then . . . this is now.”
After losing on appeal, surface owners asked that the 9th Circuit reconsider and hear the case en banc. En banc means that all of the judges on the 9th Circuit, rather than the three judge panel that first heard the case, would participate in the argument and reconsider its prior ruling. Thereafter, the 9th Circuit asked the Montana State Supreme Court to weigh in and the Montana court chose to do so. This is a process known as certifying questions. In that process the Federal Court can ask the state Supreme Court in Montana to answer certain legal questions that need to be answered under state law which might resolve the case. Interestingly, The Montana state legislature passed a new law in April of 2019 specifically providing that “fossils are not minerals and that fossils belong to the surface estate.” While that law will provide guidance moving forward, the new law specifically does not apply to any court cases that were pending at the time it was enacted and does not resolve this dispute Therefore, the Montana Supreme Court is tasked with deciding, under the common law, whether the bones can be considered a mineral. The Montana Supreme Court heard arguments in the case in November and will soon make their decision.