Animal Law

Nightmare At The Museum? The Resurrection of Extinct Species Is Coming

A look back at the fate of the passenger pigeon, the legal implications of efforts to resurrect the bird and other extinct species, and the courtroom drama over a Tyrannosaurus rex skeleton.

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One hundred years ago yesterday, Martha, the last passenger pigeon, died at the age of twenty-nine in the Cincinnati Zoo. This week, On Remand looks back at the fate of the passenger pigeon, the legal implications of efforts to resurrect the bird and other extinct species, and the courtroom drama over a Tyrannosaurus rex skeleton.

Passenger pigeons once numbered in the billions and were the most abundant bird in the United States. Seventeenth century observers reported “countless numbers” of passenger pigeons whose massive flocks took hours to pass overhead. But by the early 1900s, no passenger pigeons remained in the wild.  Habitat loss due to deforestation and overhunting hastened the species’ rapid decline. (The sport of trapshooting originally used live passenger pigeons, but later adopted clay pigeons due to the decline and extinction of the bird.) Recognizing the plight of the passenger pigeon and humanity’s role in causing it, late 19th century conservationists and lawmakers made efforts to protect and repopulate the species. But it was too late…

As the last of her species, Martha, like her namesake Martha Washington, acquired celebrity status. The public flocked to the Cincinnati Zoo for a glimpse of her lovely plumage. After her death, Martha was frozen in a 300-pound ice cube and shipped by train to the Smithsonian National Museum of Natural History, where she was mounted in a display case with the following notation:

MARTHA

Last of her species, died at 1 p.m.,

1 September 1914, age 29 in the

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Cincinnati Zoological Garden

EXTINCT

In the 1966 film Our Vanishing Lands, a segment on Martha cautioned that “extinction is a one-way street.” But perhaps extinction is not permanent. Through cloning, DNA extraction, and genetic engineering, scientists are working to restore the passenger pigeon and a number of other extinct species, including the woolly mammoth, auroch (wild ox), and heath hen.

So far, scientists have two primary methods of raising the dead.  Where DNA from the extinct species was cryogenically frozen, scientists can use somatic cell nuclear transfer (the cloning process used to create Dolly the sheep).  This technique successfully brought back a bucardo (a species of mountain goat), but the newborn survived only a few minutes.

When no frozen DNA is available, as is the case with the passenger pigeon, the task is much more complex. Scientists must reconstruct the species’ genome, often from substandard, decaying DNA samples. This process is like reassembling a story by sorting through a pile of pages torn out from several lengthy books.  As a guide, scientists typically use the DNA sequence from a closely related species as a scaffold to rebuild the extinct species’ genome.  Going from petri dish to a flesh and blood creature is no easier, however, and involves surrogate parents, behavioral and environmental modifications, and more genetic tinkering. In the end, animals resurrected this way would not be clones of the extinct animal, but close approximations or “facsimiles.”

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The science and ethics of reviving extinct species have been the subject of much discussion. But until recently, the legal aspects of de-extinction were largely ignored. In “How to Permit Your Mammoth: Some Legal Implications of ‘De-Extinction’,” a law review article published earlier this year, the authors examine de-extinction within the current legal framework, and conclude that restored species should qualify for protection under the Endangered Species Act. The authors also address potential consequences of resurrected species:

Even where the ultimate goal is release and re-establishment of the species (or facsimiles) in the wild, projects could generate considerable value. Exclusive rights to exhibit resurrected species in a Jurassic or Pleistocene Park could provide a revenue stream to recover past costs or fund de-extinction efforts for additional species. Moreover, there could be a market for resurrected species as pets, not unlike the market for exotic animals . . . .

It is probably just a matter of time before a law firm introduces a “de-extinction” practice. But don’t expect lawsuits involving puncture wounds from your neighbor’s pet triceratops or damages caused by packs of hungry velociraptors. A “Jurassic Park” of dinosaurs will not be opening any time soon. Dinosaurs have been extinct far too long for their DNA to be utilized under existing genomic technologies.

While dinosaurs may be permanently extinct, dinosaur-related lawsuits are alive and well. The most famous involved the resurrection of Sue, a 65 million-year-old fossilized Tyrannosaurus rex skeleton that has greeted visitors to Chicago’s Field Museum for the last fifteen years. Containing more than 90% of the original bones, Sue is the most complete and best-preserved T. rex skeleton ever discovered, stretching forty-two feet from snout to tail.

Sue is also the most expensive fossil to date. The Field Museum acquired the skeleton in an October 1997 Sotheby’s auction for $8.36 million – nearly fourteen times the amount paid for any previous fossil. But neither Sue’s discoverer, nor the company that excavated Sue, Black Hills Institute of Geological Research, received a cent from the skeleton’s sale.  In fact, Black Hills itself was relegated to bidding for the T. rex skeleton it introduced to the world.

Ten years before her Field Museum debut, Sue coyly revealed herself to another Sue. On August 12, 1990, Sue Hendrickson, an adventurer and self-taught paleontologist, noticed some unusual protrusions on a South Dakota cliff face.  Upon investigation, Hendrickson and her employer, Black Hills’ Peter Larson, realized that the bones belonged to a T. rex skeleton. Black Hills, a commercial fossil collector and restorer, immediately began excavating the bones. Less than 20 days later, the dinosaur, named “Sue” after Hendrickson, was free. But before moving Sue’s ten tons of bones to its facility for restoration and study, Black Hills settled up with Maurice Williams, the landowner whose ranch had become Sue’s final resting place.  On August 27, 1990, Black Hills paid Williams $5,000 for the T. Rex. skeleton… or so it thought.

Two years later in an early morning armed raid, thirty-five FBI agents and twenty national guardsmen seized Sue’s bones. According to the government, Black Hills’ removal of Sue had violated the Antiquities Act, which prohibits removing artifacts from federal land. Although the criminal penalty was relatively modest (at most a 90-day jail term and $500 fine), the case launched an ownership battle that left Black Hills president Peter Larson broken-hearted and his institute empty-handed.

After the seizure, Black Hills sued the government for the skeleton’s return, arguing that the $5,000 payment to Williams transferred title in the bones to Black Hills.  But it turned out Williams’ ranch was within the Cheyenne River Sioux reservation, on land held in trust by the U.S. government. The trust, authorized under the Indian Reorganization Act of 1934, was set to expire on September 23, 1994, when the U.S. would convey the land to Williams via a trust patent. In August 1990, however, Williams’ rights in the land were severely restricted. Without prior approval from the Secretary of the Interior, Williams could not sell or transfer the land or an “interest” in the land.

To keep the T. rex skeleton, Black Hills needed to convince the court that the fossils were “personal property” and not “land.” With no definition of “land” in the applicable statutes, the Eighth Circuit turned to the meaning of the term under South Dakota law:

Land is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance.

Unfortunately for Black Hills, the court determined that Sue was an “ingredient” of the earth’s solid material and could not be transferred without permission from the Secretary of the Interior. Since neither Williams nor Black Hills sought prior approval from the Secretary, the $5,000 sale was void, and Sue belonged to the U.S. government, which it held in trust for Williams until 1994.

With ownership of Sue resolved in Williams’ favor, Sotheby’s contacted him and offered to hold an auction. On October 4, 1997, the day of the auction, Peter Larson listened via phone as Black Hills’ $1.7 million bid quickly fell, making Williams a multimillionaire, and dashing Larson’s hopes to bring “the true love of [his] life” home.

T. rexes and passenger pigeons are still capturing imaginations in 2014. In January, “Dinosaur 13,” a film about Sue’s discovery and the protracted civil and criminal legal battles, opened at Sundance. Then in April, the Smithsonian Institution National Museum of Natural History announced that after losing Sue at the 1997 auction, it had acquired a T. rex. skeleton on a fifty-year loan. “The Nation’s T. rex” will go on display in 2019. Meanwhile, the project to resurrect the passenger pigeon continues. The organization heading the effort, Revive & Restore, has sequenced the DNA from twelve passenger pigeon samples and the closest living related species – the band-tailed pigeon. It may be 2025, however, before the first “facsimile” passenger pigeon chicks emerge. Since Revive & Restore is tinkering with the genome anyway, perhaps it can engineer a poop-less pigeon?

Samantha Beckett (not her real name) is an attorney with more than ten years of experience working in Biglaw. When not traveling back in time, she is most likely billing it. Her writing has been featured in state and federal courts across the nation and in the inboxes of countless clients, colleagues, and NSA analysts. She can be reached at OnRemand@gmail.com.

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