FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY ANN MURRAY; LIGE M. No. 16-35506
MURRAY,
Plaintiffs-Counter-Defendants- D.C. No.
Appellees, 1:14-cv-00106-
SPW
v.
BEJ MINERALS, LLC; RTWF, LLC, OPINION
Defendants-Counter-Claimants-
Appellants.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted En Banc June 9, 2020*
San Francisco, California
Filed June 17, 2020
Before: Sidney R. Thomas, Chief Judge, and Kim McLane
Wardlaw, Marsha S. Berzon, Jay S. Bybee, Consuelo M.
Callahan, Sandra S. Ikuta, Mary H. Murguia, Morgan
Christen, Paul J. Watford, Michelle T. Friedland, and Ryan
D. Nelson, Circuit Judges
Opinion by Chief Judge Thomas
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 MURRAY V. BEJ MINERALS
SUMMARY**
Montana Law
The en banc court affirmed the district court’s order
granting summary judgment to plaintiffs and declaring them
owners of dinosaur fossils discovered on their ranch.
The Montana Supreme Court accepted a certification
request from the en banc court, answered the certified
question, and concluded that dinosaur fossils were not within
the “ordinary and natural meaning” of “mineral” and, thus,
belonged to the surface estate. The en banc court held that
because the plaintiffs were the undisputed owners of the
surface estate at issue, the Supreme Court’s decision required
a resolution in their favor.
COUNSEL
Eric D. Miller (argued), Perkins Coie LLP, Seattle,
Washington; Shane R. Swindle, Perkins Coie LLP, Phoenix,
Arizona; Brian C. Lake, Perkins Coie LLP, Phoenix, Arizona;
for Defendants-Counter-Claimants-Appellants.
Harlan B. Krogh (argued) and Eric Edward Nord, Crist Krogh
& Nord PLLC, Billings, Montana, for Plaintiffs-Counter-
Defendants-Appellees.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MURRAY V. BEJ MINERALS 3
Gary S. Guzy and Pooja S. Kothari, Covington & Burling
LLP, Washington, D.C., for Amici Curiae Paleontological
Societies and Scientific Institutions.
Colleen M. Dowdall, Dowdall Law, Missoula, Montana, for
Amicus Curiae United Property Owners of Montana
(UPOM).
OPINION
THOMAS, Chief Judge:
After granting rehearing en banc in Murray v. BEJ
Minerals, LLC, 908 F.3d 437 (9th Cir. 2018), see Murray v.
BEJ Minerals, LLC, 920 F.3d 583 (9th Cir. 2019), we
certified the following question, an issue of first impression
under Montana law and dispositive of the instant case, to the
Montana Supreme Court:
Whether, under Montana law, dinosaur fossils
constitute “minerals” for the purpose of a
mineral reservation.
Murray v. BEJ Minerals, 924 F.3d 1070, 1074 (9th Cir. 2019)
(citing Mont. R. App. P. 15).
The Montana Supreme Court graciously accepted our
certification request, Murray v. BEJ Minerals, No. 19-0304,
2019 WL 2383604 (Mont. June 4, 2019), and then answered
our certified question, without modification and on the facts
and procedural history provided in our certification order.
See Murray v. BEJ Minerals, LLC, 2020 MT 131, ¶¶ 1–3
(Mont. 2020). It concluded that dinosaur fossils are not
4 MURRAY V. BEJ MINERALS
within the “ordinary and natural meaning” of “mineral” and,
thus, belong to the surface estate. Id. at ¶ 41. Because Mary
Ann and Lige Murray (the “Murrays”) are the undisputed
owners of the surface estate here, see Murray, 924 F.3d
at 1072, the Supreme Court’s decision requires a resolution
in their favor.
Accordingly, the district court’s order granting summary
judgment to the Murrays and declaring them the sole owners
of dinosaur fossils discovered on their ranch, see Murray v.
Billings Garfield Land Co., 187 F. Supp. 3d 1203, 1204 (D.
Mont. 2016), is AFFIRMED.