Supreme Court of Montana Ruling Roars that Dinosaur Fossils are not “Minerals”

This case has its origins in the Cretaceous period, which dates to over 65 million years ago.  The fossilized remains of several dinosaurs were recently discovered on a present-day ranch in Garfield County, Montana, and the rarity and value of the fossils inevitably led to a dispute as to the rightful owner of these unique discoveries.  Before Murray v. BEJ Minerals, LLC, 464 P.3d 80 (Mont. 2020), the Montana courts had not ruled on whether fossils belonged to the mineral estate or the surface estate when the minerals were severed, and the subject mineral deed did not specifically reserve the fossils.  Now, the Supreme Court of Montana has concluded that, under Montana law, dinosaur fossils do not constitute “minerals” for the purpose of a mineral reservation.

In the early 1980s, Mary Ann and Lige Murray (the “Murrays”) leased and worked as ranchers on property in Garfield County, Montana, owned by George Severson.  Time passed and George Severson transferred his interest in the property to his two sons (the “Seversons”) and the Murrays.  In 2005, the Seversons and the Murrays entered into a purchase agreement, accompanied by a mineral deed, which effectively conveyed all of the surface estate and one-third of the mineral estate to the Murrays, and the remaining two-thirds of the mineral estate to the Seversons.  The Seversons’ two-thirds mineral interest is currently held by two entities, collectively referred to as “BEJ.”

Shortly after the conveyance, the Murrays discovered valuable fossilized remains of multiple dinosaurs on the ranch.  The valuable findings included the “remains of two dinosaurs locked in combat, coined the “Dueling Dinosaurs,” discovered in 2006; a Triceratops foot, discovered in 2007; a large Triceratops skull, discovered in 2011; and the nearly complete fossilized remains of a Tyrannosaurus rex (the Murray T. Rex), discovered in 2013.”  Id. at 140.  The total value of these findings are several million dollars.  The Murrays made BEJ aware of their findings in 2008, but it was not until 2013 that “[BEJ] asserted an ownership interest in the Montana Fossils based on their ownership share of any ‘minerals in, on and under’ the Property, as stated in the parties’ 2005 Mineral Deed.”  Murray v. BEJ Minerals, LLC, 924 F.3d 1070, 1072 (9th Cir. 2019).  The 2005 Mineral Deed reserved a majority interest in the mineral estate for BEJ, but it did not reserve a specific interest in fossils.  Both BEJ and the Murrays agree that neither party contemplated fossils nor the reservation of fossils at the time of the agreement.

The unusual, yet important, question presented to the Supreme Court of Montana was, whether, under Montana law, dinosaur fossils constitute “minerals” for the purpose of a mineral reservation?  The Murrays argued that fossils are not minerals for the purpose of a mineral reservation.  In contrast, BEJ asserted that they are, demanding both an accounting and a share in the proceeds from the sale of the valuable fossils.  In determining whether these paleontological finds are part of the mineral or surface estate, the Court applied a three-part test: (1) the language surrounding the term “minerals,” and the term itself, as used in the mineral deed between the parties; (2) whether the mineral content of the material in question renders it “rare and valuable;” and (3) the material’s relation to the surface of the land, and the method and effect of its removal.”

In the first part of its analysis, the Court looked to precedent, statutes, and legal maxims to shed light on the term “minerals,” both within and outside of the mineral deed.  The maxim of expressio unis est exclusio alterius (the expression of one thing is the exclusion of another) used by Montana courts in similar cases persuaded the Court here.  Because the word “fossils” was not included in the expression “oil, gas, and hydrocarbons” in the mineral deed, it cannot be implied in the general grant of all other minerals.  The court also looked at several different Montana statutes defining the words “minerals” and “fossils” to glean some insight into their differences.  Ultimately, the court used these contextual clues to conclude that “minerals” and “fossils” are mutually exclusive as used in the mineral deed between the Murrays and BEJ.

The second part of the court’s analysis focused on whether the mineral content of the fossils made them “rare and valuable,” a standard created under a Texas Supreme Court case called Heinatz v. Allen, 217 S.W.2d 994 (Tex. 1949), and adopted in two seminal Montana cases involving the definition of minerals: Farley v. Booth Bros. Land & Livestock Co., 890 P.2d 377 (Mont. 1995), and Hart v. Craig, 216 P.3d 197 (Mont. 2009).  The court explained that the Heinatz test was not as narrow as BEJ made it seem, and that the Heinatz court focused heavily on the usesfulness of the substance in question.  “Because the rarity and value of dinosaur fossils is not a circumstance of their mineral composition and consequent usefulness for refinement and economic exploitation, they are not considered to fall within the ordinary and natural meaning of “minerals” as that meaning is used in a general mineral deed.”

The last part of the court’s analysis addressed the relation of dinosaur fossils to the surface estate and the method and effect of their removal.  Because dinosaur fossils “bear a relationship so close to the suface as to be reasonably considered as part of the surface,” and are excavated rather than mined, they are effectively part of the surface estate.  Accordingly, the Murrays were able to keep all the proceeds generated from the sale of the valuable fossils and were not required to account to BEJ because BEJ only owned in the mineral estate.  This case serves to remind landowners that a typical mineral conveyance is limited to just that: minerals.  Should the parties to a mineral deed want to broaden the scope of what is included in the conveyance, they must do so in the terms of the deed.[1]

[1] In response to the litigation in this case, the Montana Legislature enacted Section 1-4-112, MCA (2019) to provide that dinosaur “fossils are not minerals and that fossils belong to the surface estate,” H.B. 229, 66th Leg. (Mont. 2019), unless the transacting document explicitly provides otherwise.  Id.  However, the retroactivity Section 1-4-112, MCA (2019) has not been litigated. See § 1-14-111(2), MCA (2019).



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