The following is an article by the PMNS Curator

Article from the Backbenders Gazette of December, 2003
(Second place winner in Adult Advanced Articles 2003 competition with the South Central Federation of Mineral Societies;
AND Honorable Mention in 2003 competition with the American Federation of Mineralogical Societies)


Entrance-TULSA SPINE HOSPITAL and (l to r): Frank Tomecek, M.D., Steve Gaede, M.D. Bruce Hudkins, M.D., Andy Revelis, M.D. Scott Anthony, D.O. and Terry Woodbeck, Administrator	Pennsylvanian epoch (300 MYA) fossil leaves from the Tulsa Spine Hospital location. Material contained fossil ferns, scouring rushes, Lepidodendron roots, et al

Terry Proctor, PMNS Curator, recovering Pennsylvanian leaf fossils from one of the nine piles of material dumped for the group, by the Heavy Equipment Operator, Mr. John Jackson	Terry Proctor, J.D. (l.) presenting Tulsa Spine Hospital Administrator, Terry Woodbeck (r.) with a specimen of the Pennsylvanian fossils from that location for permanent display at the hospital. The specimen and case were provided by HGMS member, Paleontologist Neal Immega, Ph.D.

A ROCKHOUNDS GREATEST ASSET

What is the greatest single asset which Rockhounds have?

       It is LANDOWNERS who are WILLING to let US HUNT on THEIR PROPERTY!!! This is true, whether it is the BLM (Bureau of Land Management), State land agencies, private corporations, or private land owners.

       If we were not allowed the privilege of going on someone else's land to hunt for minerals, fossils and gemstones, our hobby would virtually die tomorrow.

       Why do some landowners, who once allowed us to hunt on their land, now appear hostile, or at least cool to the idea when we request permission to hunt on their property?

       The reasons may be varied, but they probably stem from:

       #1 Abuse by someone who did not appreciate the opportunity to hunt on another's land;

       #2 Over-use of the land, i.e. too many rockhounds hunting too often;

       #3 A determination that the landowner might incur some liability in allowing others on their land;

       #4 Possibly, simple a different plan for use of the land which has nothing to do with any interrelation between Rockhounds and Land Owner; and

       #5 Probably dozens of other reasons.

       However, I would bet that the main reason is #1, #2 or #3 in that order.

       So what can we do about it. For one thing, as an attorney, I have drawn up a number of "Assumption of Risk" forms for the Houston Gem & Mineral Society, The Tampa Bay Fossil Club, the Proctor Museum of Natural Science and a number of other individual and groups.

       The law in Texas and probably in every State is that it is against public policy to allow a person to have another waive liability. As such, a document by a landowner, which purports to have the Rockhound, hunter or anyone else going on the property, to waive the liability of the landowner, is simply unenforceable and would not hold up in Court.

       Most Rockhounds appreciate the need for landowners to feel comfortable when allowing Rockhounds on their property, without danger of having a claim filed or being sued. Houston Gem & Mineral Society is about 56 years old and we have had several members receive broken bones and injuries, while on the land of others with permission. There has not been even one instance where our injured member attempted in any way to hold the Landowner liable. Rockhounds, for the most part, comprehend the fact that Landowners are doing us a favor by letting us on their property to hunt for minerals, fossils and gemstones. We should all know that one bad apple can spoil the bushel. Hopefully we will all continue to have this positive attitude toward our benefactors, the Landowners.

       The laws of every State, to my knowledge, prevent a waiver of liability as being against public policy. That means that even signing a waiver of liability does not protect the Landowner.

       So what is the solution to give the Landowners a feeling of confidence in Rockhounds going on their property. What I draw up is an "Assumption of Risk" Agreement form. Assumption of Risk is a recognized "affirmative defense" to a claim of liability. If the party who is injured, recognized in advance, that what that person was doing was dangerous; has been warned that it is dangerous by the written "Assumption of Risk" Agreement form; that the Landowner is allowing the person only to use the property, with the Rockhound recognizing in writing, that the Rockhound understand the risks which the Rockhound is taking and has chosen to "assume those risks", then it would be difficult to hold the Landowner liable.

       This affirmative defense is close to a waiver of liability, but the "Assumption of Risk" is able to be placed into evidence for the Court or Jury to determine that the Rockhound, hunter or other person on the land, knew what they were getting into, before they undertook the matter, and hence accepted those risks. It is similar to what Hospitals and Doctors have you sign when you undergo surgery.

       Now let me tell you about the best Landowners which I ever heard. The participating Rockhounds were members of the Houston Gem & Mineral Society-Paleo Section and of the Proctor Museum of Natural Science.

       On June 2, 2002, after my wife Misty and I had attended my 50th High School Reunion in Tulsa, Oklahoma, we were leaving town. We drove out 71st Street, crossed the Arkansas River, and were headed toward Highway 75 South to the Indian Nations Turnpike and back to Houston.

       Just before we reached Highway 75 I looked off to the right and saw where some heavy equipment had been working tearing out bluffs and a very large new building was going up, across from the heavy equipment work. It was obvious that the bluffs consisted of sedimentary layers and were very fossiliferous appearing. Instead of crossing Highway 75 and heading South and since I was right at Highway 75, I turned to my right and then carefully backed up on the shoulder, turned around on 71st Street and went back the short distance to the entrance to this area.

       A pickup truck with about 4 or 5 men was driving out. I stopped and motioned to the truck that I wanted to talk. The driver, whom I later learned was named John Jackson, stopped and I asked him if there were any fossils in the bluffs. He said "only plant fossils". I said "Good enough. Can we dig?". He said "It's all right with me". Since he was leaving, and it was on Sunday, I knew we dug with this limited consent or passed up what appeared to be a great opportunity.

       Misty and I didn't really have with us our normal digging tools. However, I had a few things with which we could dig, so dig we did. What we started finding was really exciting. We were finding pieces of fossil ferns, what appeared to be Lepidodendron bark and a number of other fossil plants. I was using a putty knife and other inadequate digging tools. The layers were very hard to dig more than a couple or three inches into, so the specimens we were able to get out were limited. However, it was one of the most exciting finds I have had, because here was a bluff which was perhaps 15 to 20 feet high and ran for hundreds of yards. We could also find pieces of plant material all through the rocks which had been torn down by the earth moving equipment.

       After saving a number of wonderful fossils, we returned to Houston, but I was determined that I needed to find out what this project was and who was constructing the building and through that, who owned the land and new building. After a number of wrong leads, going through the City, the Indian Nations Council, I finally learned that the Schuster Group was constructing the building and it was to be the new Tulsa Spine Hospital. Frank Schuster undertook to contact the Board of Directors of the new hospital and with a number of communications via long distance calls and the internet, I learned that the doctors had unanimously voted to let the Proctor Museum of Natural Science and the Houston Gem & Mineral Society come dig these 310,000,000 year old Pennsylvanian plant fossils. Frank Schuster provided me with the email addresses of all but one of the doctors, and I communicated en masse to them, to Frank Schuster, and with Terry Woodbeck who was to become the CEO of the new Tulsa Spine Hospital.

       We tentatively were planning to dig in November, 2002. However, my mother died on July 24, 2002. Therefore, I had to go back to Tulsa for her Funeral on July 27, 2002. While there, I went by the location and found that the heavy equipment was tearing out the bluffs so much quicker than I thought would be the case. Therefore, I feared that by November, there would be nothing left to dig. I talked with Frank Schuster and he told me that the heavy equipment operator was John Jackson and that John would work with me.

       I went by and talked with John Jackson and he told me that he would save us a dump truck load of material and put it down near some trees near 71st Street. John had already laid out a number of lines of material for Delilah and I to go through. We were like kids in a candy store. I managed to drive my GMC Yukon XL right up to the location, although it was rough driving to cover the rocks and ravines. We were able to get much better slabs of ferns than before, although I didn't find any more of the Lepidodendron roots and root bark. We went home very happy campers.

       Before leaving, as an advance thank you, I took one of my eArt Scans to the Hospital and gave it to Terry Woodbeck, for the new Hospital's lobby area. It was of some shells. I promised that we would also save some of the Pennsylvanian fossils and put them in a display for the Hospital with a document telling about what was at the hospital location before it was built. Everyone was very cooperative with us.

       After getting back and telling the members of the Proctor Museum of Natural Science and the Houston Gem & Mineral Society Paleo Section of the urgency in getting our dig earlier while the material was still in existence, it was determined to go back to Tulsa promptly. I put together a map, directions and copies of what plants the members might find, into packets to hand out to those who went on the trip.

       On August 16, 2002 we arrived back at Tulsa and my wife and I became concerned as there was no material in the area where the trees were near 71st Street as promised. I checked around and finally got in touch with John Jackson and politely inquired why the material had not been saved and placed for us as promised. John said, "Oh it rained heavy here and I was afraid you couldn't get into that area. Therefore, I put nine dump truck loads of material at the West end of the property for you to go through". Nine dump truck loads!!! I couldn't believe this type of cooperation from a property owner.

       The group met on Saturday, August 17, 2002, at the Walmart Store near the new Tulsa Spine Hospital location. I handed out the directions, identification sheet and other material to those who made the trip and we proceeded to the location. When we got there we had the new paved road into the hospital, which we took to the far West end of the property, where we parked barely three or four feet from where John Jackson had dumped the nine dump truck loads of material.
Members of the two organizations were overjoyed with the huge slabs of fossil ferns and other Pennsylvanian plant fossils. One member of the Proctor Museum of Natural Science complained "This is too easy". Rockhounds are often used to walking long distances, carrying their prizes for a long return trip and often having to make a number of long trips to carry their booty to their vehicles. Yes, this was too easy. We were loading our vehicles with great fossils and only having to carry them five to ten feet. On top of that we didn't have to tear through overburden and pry specimens out. We just moved loose material and took out large chunks intact.

       To make matters worse in the "easy dig" category, John Jackson came over after we have been digging in the nine piles for some hours, and asked if we would like to have him stir the piles to bring up new material. What guy and what a dig. Of course we wanted the piles stirred so he used a front end loader and stirred the piles for us so we had new specimens again. If we hadn't become hot and tired after hours of digging out treasures and loading large numbers into our vehicles, we probably would have still been digging.

       A couple of the doctors on the Board of Directors of the Hospital came and dug with us also. Steve Gaede, Chairman of the Board showed up to dig as did David Fell, a graduate of Baylor College of Medicine in Houston, where my brother also got his degree in medicine. Steve Barnes who was the Superintendent on the job came and dug with his young son and John Jackson was bringing his child to the site to dig also.

       We appreciated the help of Bryan Tapp, PhD Chairman of the GeoSciences School at Tulsa University, for helping us identify the formation where we were digging. The doctors on the Board of the Hospital were Steve Gaede, MD Chairman; Scott Anthony, DO; Chris Boxell, MD; David Fell, MD; Gerald Hale, MD; Matt Powers, MD; Dave Malone, MD; Andy Revelis, MD; Eric Sherburn, MD; and Frank Tomecek, MD.

       Neal Immega, a paleontologist with the Houston Gem & Mineral Society took an excellent specimen of ferns and other fossil plants and put them on a mahogany plaque and covered it with a clear vinyl cover to make a great display of the material to give to the Tulsa Spine Hospital. I presented this to Terry Woodbeck in June, 2003. The piles of material were now gone. However, after we left, I tipped off the Tulsa Rock & Mineral Club, of which my father was President at one time. I understand their club had a good dig after ours.

       I plan shortly to get the engraved plate to go on the plaque and the framed document to tell about the site, to the Board of Directors of the Tulsa Spine Hospital so that this will become a permanent part of the history of the Tulsa Spine Hospital. Patients will be able to see what grew at that location 310 million years ago.

       John Jackson told me that other projects in that vicinity were planned and said he would try to let me know when he would be moving earth (and fossils) again.

       We really need to let our Landowners know that we appreciate them and respect the fact that the property is theirs and they are doing us a big favor by allowing us to dig on their property. Let's keep this great avocation by showing appreciation to those who make it possible, the Landowners!!!

Contact: Terrell William "Terry" Proctor, J.D. c/o T. W. Proctor & Associates
630 Uvalde Road, Houston, Texas 77015-3766
Phone: 713) 453-8338 FAX (713) 453-3232 eMail: auraman@swbell.net
Other Websites: http://www.terryco.us and http://www.terrylaw.us.