Fossil dig unearths lawsuit

Trial deals with ancient whale skeleton apparently excavated from private property

  • Paleontology crews work to encase the whale vertebrae in plaster. Calvert Marine Museum refilled the excavation site with sand and concrete, but the cliff continues to erode.
Paleontology crews work to encase the whale vertebrae in plaster.… (Calvert Marine Museum photo…)
April 05, 2010|By Frank D. Roylance

The discovery of 10 million-year-old whale bones poking out of an eroding cliff face in Calvert County seemed a windfall for science.

That's certainly how Shmuel Rotenstreich saw it when the bones appeared almost two years ago below the cliff-top home he shares with his wife, Debora Linzer, in Chesapeake Ranch Estates.

So when someone from the Calvert Marine Museum asked if he'd object if the museum's paleontologists excavated the skeleton, Rotenstreich, 63, a computer scientist at George Washington University, did not hesitate.

"He's a scientist. I'm a scientist, too," Rotenstreich said. "So I said, 'Obviously not.' "

And with that blessing, five months of digging at the site began.

Unfortunately for all concerned, it now appears that his property included neither the cliff face nor the fossil skeleton. Which is why Rotenstreich and the museum in Solomons have been hauled into court.

The local community association, which claims it owns both the cliff and the fossils, is seeking monetary damages and a court order to keep the museum off its property unless the museum gets prior permission. A non-jury civil trial is scheduled to begin Tuesday in Calvert County Circuit Court.

The dispute began with the June 2008 discovery of the bones by John Nance, collections manager at the museum and also one of the 13,000 residents of Chesapeake Ranch Estates.

A bone was protruding from eroding sand about halfway up the 80-foot cliff face, says Stephen Godfrey, curator of paleontology at the museum. Climbing a ladder, Nance and Godfrey were able to confirm the bone was likely part of a whale's skull.

Using coordinates from a GPS device and county land records, they identified the owner of the property at the top of the cliff, above the bones. And soon they had Rotenstreich's permission to proceed.

Godfrey says the sediments that held the whale bones date to the Miocene epoch, 9 million to 10 million years ago, when the region lay at the bottom of a shallow arm of the Atlantic Ocean. The waters teemed with whales, dolphins, sharks, sea cows and shellfish, all of which left remains in the sands now exposed in the crumbling cliffs.

"Every year we quarry four to six dolphin or whale skeletons from the cliffs," Godfrey said. Although this example is missing most of its skull, some ribs and small limb bones, he described it as "probably the most complete whale skeleton that's ever been collected from along the Calvert Cliffs."

Godfrey believes the bones belonged to a member of an extinct family of filter-feeding whales called Cetotheridae. They were relatively small, similar to today's minke whales. This one was perhaps 18 feet long, found lying horizontally in the cliff.

Working from ladders, Godfrey's team slowly dug out the bones, creating a notch in the cliff face 20 feet wide and 5 feet deep.

The dig had been under way for about a month before the community association became aware of it. Its representatives warned the workers they were trespassing and endangering themselves by digging into the cliffs.

"We asked them to leave for reasons of danger," said John A. Eney, president of the Property Owners' Association of Chesapeake Ranch Estates.

In 1996, a 9-year-old girl whose family lived in the community was killed when part of the cliff collapsed. The association was sued by the family and held liable. Damages were paid by the association's insurance company.

Despite the warnings, the museum's dig continued. Through the summer and fall of 2008, Eney says, the association had a survey done to prove it owned the cliff face. The association also argued that the dig violated community covenants and county regulations requiring permits for the removal of sand, and federal regulations protecting an endangered beetle that lives in the cliffs.

"Suffice it to say he [Godfrey] didn't think we needed a permit," said Dan Karp, an attorney hired by the Calvert County commissioners to defend the county-owned museum. "And nobody gave us the covenants, and we would not be bound by them anyway."

In September 2008, the association filed its lawsuit seeking an injunction to stop the work. But the dig was completed in December, before the case could be resolved.

Eney says the association now wants the court to affirm its ownership and its right to control access to the cliffs. It also wants the judge to keep the museum from entering the property without permission. And, it wants to recover its legal costs - about $140,000, according to Eney.

"Why not look the other way?" he asked. "That would set a precedent forever, that Chesapeake Ranch Estates does not enforce its own trespassing regulations."

Karp says that if the court agrees that the association does indeed own the cliffs, the paleontologists were wrong to be there.

"If it turns out the land is yours, we're sorry," Karp said, suggesting what he might say in court. And if that means the whale, too, belongs to the association, "we'll give it back to you."

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