The Ninth Circuit Court of Appeals granted rehearing en banc in Murray v. BEJ Minerals, LLC, to determine whether dinosaur fossils are part of the surface or mineral estate under Montana law. Finding state law determinative and no controlling precedent, the Ninth Circuit certified the question to the Montana Supreme Court. This question asks the Court to determine: Whether, under Montana law, dinosaur fossils constitute “minerals” for the purpose of a mineral reservation?

This question presents the Court with the issue of determining whether dinosaur fossils are “minerals” for the purpose of a mineral reservations in a deed between private parties in Montana. During the 2019 Legislative Session, the Montana State Legislature passed legislation establishing that fossils are not “minerals” for the purpose of a mineral rights reservation. Here, however, the Court has the opportunity to articulate a test that will affect not only the dinosaurs fossils in this matter, but also principles of contract interpretation and the relationship between the judiciary and the legislature.