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Highgrading, the selling of stolen goods and turning a blind eye
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BlueCapProductions




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PostPosted: Jul 13, 2011 02:50    Post subject: Highgrading, the selling of stolen goods and turning a blind eye  

In the film series New Crystal Hunters ( https://www.newcrystalhunters.com ), our goal is to engage a young audience by showing them the thrill of field collecting. When we visit sites that are not open to the public, our hosts always make the point that any potential collector should contact the mine owner to ask for permission to dig on their land. Our hosts point out that, more often than not, permission is granted with the agreement that if anything of value is found, there should be a sharing of the resulting benefits.

I’ve always included these segments in the films because I feel that this is a valuable lesson to teach kids not to mention anyone, of any age, who may be interested in field collecting. In fact, it’s a good way to keep field collecting alive which is critically important to the mineral collecting world according to many of the people I’ve interviewed for the American Mineral Treasures film project.

I assumed that all prominent collectors and dealers would agree - especially if it involved any icons of the mineral world. Apparently I am wrong in this belief.

My father, Edward Swoboda, has been a mineral collector for over 85 years. His accomplishments and contributions to the mineral world are long and distinctive (for a brief biography on him, here’s a link to the Mineralogical Record’s Biography section on him: https://www.minrec.org/labels.asp?colid=630 ). He has obviously been an incredible influence on me and it is because of him that BlueCap Productions exists.

In the 1980s a local Pala, CA resident broke into the Tourmaline Queen Mine that was, and still is, privately owned by my father (NOTE: All names will be withheld from this public post as to protect FMF and to ensure that this topic not be deleted. I ask all contributors to do the same. If you’d like to discuss specific details, please send me a private message through FMF or directly at:
bryan(at)bluecapproductions(dot)com).

This highgrader - a term used in distain to describe any thief who steals mineral specimens from a mine - uncovered a pocket of tourmalines and proceeded to dig out the specimens and claim them for his own.

This highgrader has recently passed away and willed "his" specimens to his surviving brother. This brother contacted a prominent mineral dealer, who was the last employer of his deceased brother, and asked this dealer to sell the specimens for him. This dealer, knowing full well that these specimens had been stolen from my father's mine, agreed to sell them and started doing so at the 2011 Tucson show. This was done without any consultation, consideration or communication with my father.

This was especially frustrating to me as for years now I've been trying to get my father to spend more time at Tucson so that he can see how well he's still remembered and honored in the mineral collecting world. As I travel around the world making mineral films, I'm constantly meeting people who share their stories about meeting my father and how he influenced them. One of the best memories I have since starting BlueCap is when a new, young dealer came up to my father at the TGMS show, introduced himself and asked if he could take a picture with him next to the Candelabra blue cap that was on display during the American Mineral Treasures exhibit. My father walked on air for DAYS afterwards.

It's been exactly this kind of reception that FINALLY has my father participating in the hobby again. He proudly put in a huge rough and cut display at the 2010 TGMS show that he spent over 10 months building from scratch. And then for the 2011 TGMS show, Jeff Swanger, owner of the OceanView Mine, honored him by inviting him to join Tucson Mayor Bob Walkup to do the special unveiling of a huge new Kunzite specimen that Swanger had just uncovered.

After hearing the news of the blatant sale of these stolen specimens, it was only my father’s commitment to Swanger that kept him in Tucson. Immediately after the first day of the TGMS show, my now 93-year old father left Tucson in disgust - especially as this dealer had greeted him with a hug and open arms at the Westward Look Show where he had started selling the stolen tourmaline.

Since Tucson, I have tried repeatedly to contact this dealer to talk this out. I've left numerous voice mails on his answering machine asking him to call me back so that we can discuss a mutually acceptable solution to this situation. I have been very clear and upfront about preferring to handle this in a friendly fashion and not wanting to get lawyers and attorneys involved. I've tried reaching him via email. All to no avail. I've not heard a single word back from him. This was rather surprising to me as I thought we had developed a friendly relationship with each other through my annual coverage of him in What’s Hot In Tucson. Needless to say, he is not included in the 2011 edition.

As a last resort I even contacted a friend of his, whom I know is in close contact with him, asking him to pass along the message to have this dealer please contact me or else I’d have to pursue legal means to address this wrong. The reply I received from his friend was a question of whether or not I was serious about this. He goes on to say that half, if not more, of the specimens in collections are stolen property and that I should just forget it and get on with it.

His most offensive comment was when he wrote that since I'm trying to grow my business I shouldn't muddy the waters I'm swimming in by making public a practice that many collectors have benefitted from. The irony isn't lost on me that this advice is coming from someone who benefitted greatly from this situation by having acquired one of the stolen tourmaline specimens.

I was talking to some dealer friends of mine about this issue and they shared with me that they were told by this dealer that the whole issue was water under the bridge. That all had been forgiven. I pointed out the fact that it's funny when everyone says all has been forgiven yet no one has talked to the person from whom the specimens were stolen. This dealer never contacted my father to get his opinion and has certainly not contacted me to try and resolve this.

As I privately talk to other figures in the mineral collecting world about this situation, there is a general outrage that someone would so blatantly disrespect my father and try to profit from this. There can be no doubt that this is one situation I take very personally. However beyond just this slap-in-the-face to someone who many consider a mineral legend, I think this kind of behavior - this turning a blind eye - is something that we should all address as a community.

Is there much difference between stealing from someone’s mine (for which the owner pays taxes, operating expenses, etc...) versus stealing from someone’s private collection? Where’s the dividing line especially when there are feasible alternatives to theft like asking for permission to dig?

In this example, the highgrader could have contacted my father and gotten permission to dig at the mine and shared in the results (he’s granted this kind of permission many times in the past). Knowing this never happened, this dealer had an opportunity to right this wrong by contacting my father to work out some mutually acceptable arrangement for the sale of these specimens thereby becoming a shining example of how people might act in a kinder world. And failing that, I gave him every opportunity to work something out with my father after the fact.

This dealer, at every opportunity, has had the option to do the right thing and at every opportunity, he has chosen to ignore what a decent person might do. He has chosen to follow the actions of a mineral dealer lusting after greed, presumed prestige and personal gain - all the things many in this hobby complain about. He harms his reputation, disregards the potential consequences for his customers and thumbs his nose at the great contributions of one of his own hobby’s pioneers.

He does this with the belief that he will be unscathed by his actions. That this is business as usual and that no one cares. I may be a small, and relatively new, voice in the mineral collecting world but I believe that this hobby is better than that and I work hard to communicate all the great things about this hobby to the outside world. I believe that, in this situation, there are no “shades of gray” as is suggested by some. This was wrong in the 80s, it is wrong now and it will be wrong in the future.

Please share your thoughts and comments with everyone here on the FMF board or, feel free to contact me privately.

Thank you,

-Bryan Swoboda
President
BlueCap Productions

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crocoite




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PostPosted: Jul 13, 2011 07:23    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Congratulations on being brave enough to air this in the open Bryan. I hope that some good comes of it.

Regards
Steve
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PostPosted: Jul 13, 2011 10:06    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Bryan,

As implied throughout your post, this sort of behavior has happened in the past, and likely will in the future. In many respects, this event is no different than miners highgrading minerals from their employer's mines, except that the transgression is against a Corporation versus a well known individual. But, this is how many specimens get to market. I wonder how many such specimens Ed dealt with over the years? And, I think most dealers think it is a perfectly acceptable practice.

One of my friends had several contracts with different mining companies, but that didn't prevent the shift bosses and miners from keeping him out of areas so they could collect (highgrade) and sell those rocks to other dealers. That was a transgression against both the Corporation and the dealer with the contract. Again, most dealers had no problem selling these specimens, even those that were friends with the contracted dealer.

Neither of these cases seems particularly different from a moral standpoint from the story you relate. Of course, that doesn't mean either practice is right, but these are accepted practices in mineral world.

In 1993, I had the opportunity to meet a Legend in the mineral collecting community. In the course of several meetings with him in his home, he offered to sell me his remaining sales stock, as he hadn't really been dealing in specimens since the mid to late 1970s. I found him to be a very pleasant person, with many great stories, and a fabulous specialty collection. At the time, I felt privileged to meet him, and to have the opportunity to make a deal with him.

After about 6 or so hours of evaluating the minerals, this Legend and I made a deal with a specified amount of money. I wrote out a check to him and began to pack it up. In the course of our discussions, I had told him that I planned to keep one specimen of the several examples of a mineral species from a locality he was famous for finding. I thought it was neat that I would actually have in my collection a specimen collected by the Legend from this famous locality. I can't mention the mineral or locality as that would clearly identify the Legend.

So, as I was packing, the Legend casually asked me which of the two best specimens of this mineral I planned on keeping for my collection. I looked at the two, and finally pointed to the one I liked best. The Legend then picked up the specimen, and told me that it was not part of the deal, and was not for sale. Even though we had a deal and he had my money, the Legend changed the deal. I guess he thought it funny. And, he refused to let me have it, even when I offered him more money. I proceeded to pack all the materials and have sold many of them.

A few years later, I saw "my" piece in the display of another dealer who was selling it for the Legend, and most recently, I saw it again for sale from another dealer. In this case, I had bought and paid for the piece, so it was legally mine. But, I went forward with the deal because it was a good deal nonetheless from a business standpoint, even though I didn't get a specimen for my collection, and now could care less about having in my collection a specimen from this Legend.

This is an actual example of someone selling a stolen specimen, as the Legend stole it from me and then sold it to another dealer. There are no "shades of gray" in this case. I always believed that someday the Legend would get taken by someone more unscrupulous than he, and perhaps it has or will happen. I don't hold any animosity towards those dealers who subsequently sold "my" specimen, even if they knew the story, because the Legend was the transgressing party. Perhaps you should view it similarly.
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PostPosted: Jul 13, 2011 11:59    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Bryan,
an interesting story and one which I surely understand evokes emotions. But it may be a bit "local" for an international forum to discuss in detail. I think Gneissware introduces more general aspects - even if I believe most specimens "stolen " from working mines and quarries would have ended up as crushed ore or gravel. What miners in many cases "steal" from their employers when securing specimens is more the time consumed in addition to the possible risks to the operation. But today this is maybe no worse than when others use their paid working time to read newspapers on the web using their employers computers..
It may be hazardous for a foreigner to challenge the native use of English, but I have not understood the word "highgrade" to be synonymous with "stealing" - just selecting the richest pieces from a pile of ore - or the best specimens when collecting or purchasing specimens. Thus highgrading (as defined in tne Mineralogical Record Vol 5 p. 54) could be used to describe a completely legal and ethical behaviour commonly found among collectors.
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PostPosted: Jul 13, 2011 19:01    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Bryan

Just a side note for you on the collecting in the Tourmaline Queen mine. Back in the day when your dad and Bill where mining, I had the chance to go to the mine with John and Joise Scripps to collect on the dumps (1972). I was allowed to go into the mine with John and he let me collect out of an active pocket some small tourmaline pieces. I of course had to show them to Bill before I could keep them. Once i got them home I found out what I had collected went together to formed two really nice minis. I once again showed them to Bill and I still have them in my collection to this day. It does pay to get permission from mine owners.
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PostPosted: Jul 14, 2011 01:16    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Thank you Steve. I appreciate your words of encouragement!! I'm trying to do the right thing. Laying down and just letting this violation go uncontested was never an option for me. I felt that I had done the reasonable thing by attempting to start a friendly dialogue with the dealer but I never received a response. It left me with few options.
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PostPosted: Jul 14, 2011 01:48    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

GneissWare,

I can see how one may see the similarities between a privately-owned mine versus one owned by a corporation however, one must take into account the ultimate purpose of the mine. With a corporate-owned mine, if I'm understanding you correctly, their main product is ore. In a privately-owned mine, as in this case, its sole purpose is to collect mineral specimens. So if you want to compare apples to apples, you would have to consider the consequences of a miner stealing 2-3 years worth of ore from a mining corporation (and that's being VERY conservative).

As for your experience with this Legend, it sounds like you always had the option of just walking away from the deal. Maybe there was a misunderstanding. Maybe there was a change of heart. Maybe, as you say, it was unscrupulous. But ultimately you chose to accept the deal despite it having changed and, technically, the minerals didn't become yours until you left his house with the minerals in your car and the check in his pocket.

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PostPosted: Jul 14, 2011 01:59    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

keldjarn,

I think you make some excellent points in your examination of GneissWare's analogy.

As for the usage of the term, "highgrader" I've seen it used many ways including the one you quote from the MinRec. However, in the case of miners and mines, when they refer to highgraders, they mean people who illegally trespass on the mining property and steal mineral specimens (although I guess some who visits a property WITH permission and then steals might also be considered a highgrader).

An excellent example of this was when we were preparing to film New Crystal Hunters: Smoky Hawk. Claim Owner Joe Dorris had discovered a pocket of Amazonite with Smoky Quartz that he covered over with the intent of allowing the kids to dig out this pocket when we were on location. About a week before we showed up, some highgraders (as Joe described them) snuck onto his property in the middle of the night, discovered the pocket and proceeded to empty it out. Joe called me up the next day very upset that this had happened and worried that we might not have a neat little surprise for the kids. So the illegal, selfish and greedy act of these individuals could have had a very negative effect on the kids who were visiting AND could have affected the impact of our film which has gone out to kids around the world. Fortunately, we found another pocket about a day before we showed up that turned out to be the best pocket of the season - in fact we found TWO great pockets The New Crystal Hunters Pocket and the Parents' Pocket.

Fortunately in this case there was a happy ending.

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PostPosted: Jul 14, 2011 02:12    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

rweaver,

THANK YOU. The system DOES work!!!!!

Now, wouldn't it be nice if the dealer could bring all the remaining specimens from this pocket to my father, for them to sit down together to discuss what would be a fair way to move forward and for ALL of these specimens to lose this taint of having been stolen??

I'm not saying that this WILL happen but I can guarantee that this WON'T happen if a dialogue is never started. And believe me, I think enough people are invested in this that WHATEVER happens will find its way to this message board.

I've reached out many times and have never gotten so much as a response. I think the ball is in the dealer's court.

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PostPosted: Jul 14, 2011 08:14    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

BlueCapProductions wrote:
GneissWare,
...technically, the minerals didn't become yours until you left his house with the minerals in your car and the check in his pocket.

...As for your experience with this Legend, it sounds like you always had the option of just walking away from the deal. Maybe there was a misunderstanding. Maybe there was a change of heart...


Technically (presumably you mean legally), possession (ownership) occurs at the instant the payment is made, not after an item is removed from the premises of the transaction. And, since the check was in his hand, the deal was complete. Technically.

To help clarify the legal position vis-a-vis your father's case, this incident happened in the 1980s. Under CA Penal Code section 801.5, referencing Penal Code section 803(c) (see 803(c)(1)), felony theft, the statute of limitations is FOUR years from date of discovery or completion of the offense, whichever is later. So, "technically" you really have no recourse.

Since Ed did nothing at the time of the incident, or within the statute of limitations, perhaps he had a deal with this person. Maybe there was a misunderstanding. Maybe there was a change of heart. Or, perhaps, like me, he decided is wasn't worth the trouble of prosecuting the other party.
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PostPosted: Jul 14, 2011 09:30    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Bryan,

I hope you and your father find justice in this all. I don't agree with the view that this situation should be dismissed --- you are fighting for the broader issue of ethics and honor in the hobby.

If the dealer community does not fight for ethics and honor then who will? Many collectors have left the hobby because of a lack of both shown to them.

I urge to "out" the dealer involved on Mindat. Jolyon has himself outed at least one dishonest dealer. It may help bring pressure to bear on a resolution.

Good luck!!!

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PostPosted: Jul 14, 2011 10:08    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Thank you Bryan, for starting such a thought-provoking thread... rife with fertile ethical and legal considerations for our hobby. As this evolves we encourage posters to keep the thread focused on the mineralogical and ethical issues while avoiding personalities and finger-pointing. Please keep the details on the back-stories general enough to illuminate the discussion while vague enough to discourage speculation on who is being referred to.

Reputations are easily damaged and difficult to rebuild. As has already been pointed out, there may be several legal, ethical and historical sides to the background stories being related here and the FMF is not intended to be a court of public opinion in which to present one's case.

I'll take my moderators hat off and enter the fray separately

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PostPosted: Jul 14, 2011 12:36    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Please correct me if I am wrong, but I believe that regardless of any statute of limitations for "prosecution" of a theft, the ownership of the item remains that of the original owner and title cannot be passed to a buyer of stolen property.
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PostPosted: Jul 14, 2011 15:14    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Tenney Naumer wrote:

...the ownership of the item remains that of the original owner and title cannot be passed to a buyer of stolen property.


That depends on the type of item, and if there are certain statutory exemptions. For example, Holocaust related thefts have the statute of limitations (SOL) waived.

Possession of stolen property, under California felony law, also has a 3 year SOL, running concurrently with the original theft. If it was as you stated, then if Party A steals an item and waits 3 years to sell it (so as not to be in violation of felony theft), then passes it on to Party B who also holds it for 3 years (so as not to be in violation of felony possession), and then to Party C. If Party C could be found in violation of felony possession when Party A and B could not, then the whole concept of SOL would be moot. This would sort of be akin to a continuous trigger, which also is rare in the law.

Nonetheless, just because something is not illegal doesn't make it right.
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PostPosted: Jul 14, 2011 17:15    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Normally I would not inject myself into something like this but and I will also say that I am not the Pala resident pointed at here. I was a regular visitor to the Tourmaline Queen mine and other Pala district mines from 1975 until 1985. Whenever it rained it was a race to get to Pala first and walk up the ravine leading to the dump. Every time I made it to the top the mine was sealed shut and posted with a keep out sign which was always honored. We were never discouraged from digging on the dumps even when the owners were there. However, in January of 1985 I made the trek up the slope and was SHOCKED to see the mine wide opened AND abandoned. It took about an hour to march down to the truck and get my tools and walk inside for the first time.

It took only 30 minutes of poking around to find an exposed pocket and I proceeded to collect a backpack full of nice elbaite crystals. The old saying is to never leave a pocket uncollected but I ran out of time and had to make it back to Reno, Nevada. Apparently, the Pala resident came in after I did and found what I found - an abandoned and open mine.

The point is that in the mid 1980s the mine was WIDE OPEN and there were no signs telling you to keep out. Was that high grading? No. That was taking advantage of a rare opportunity to collect some minerals.

And what of the stories of countless people who've made it to the Benitoite Gem mine since the 1930s, poked around and took specimens even though that was private property. There is a recounting of trips made to the Gem mine by Ed Swoboda and Pete Bancroft in the Mineralogical Record. What did they do with the 1000s of specimens they collected? Did those not all belong to the Dallas Family? I would venture to say that 2000 boxes of material from the Gem mine can be found in garages within a 200 mile radius of the mine.

Had the person in question physically broken a lock to get into the mine I would agree on the application of the word high grader. However, if a mine is abandoned and wide open then that is an opportunity that many of us in this hobby have availed ourselves of all across the western United States. To say these specimens were stolen seems a bit harsh to me. There are other considerations too - not the least of which is why bring this up now 25 years after the fact?

As with any story there is likely another story behind what is stated and that is what this sounds like.
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PostPosted: Jul 14, 2011 18:22    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

I do not really want to expand to much on all this but something that everyone seem to have forgotten.

Mineral deposits are most often under claims or staked. (i.e. the mineral rights belong to the owner of the claim). Hence, it does not matter if the adit, portal or shaft are open or not, entering without permission will be trespassing and taking "ore" without permission of the claim owner will be taking possession of something that belongs to the claim owner. The claim owner has, remember, the mineral rights. The principles behind claims/minerals rights, are driven by state-provincial-country mining laws and regulations. Interestingly enough, these are seen in all countries around the world under one form or another and will generally provide the claim owner, not the trespasser, with the right to mine or exploit the mineral deposit found within the limits of "claim".

A very slippery topic.
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PostPosted: Jul 14, 2011 19:08    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Jim wrote:
If the dealer community does not fight for ethics and honor then who will? Many collectors have left the hobby because of a lack of both shown to them.


Many of my friends have urged me to participate in this forum. I've been lurking in the shadows for a few months and have decided that I like what I see. So here I am. It looks like I've picked a pretty controversial subject for my first post here; but one has to start somewhere.

That having been said; I fully agee with you on this one. I've seen it happening more and more and it saddens me.

Jim wrote:
I urge to "out" the dealer involved on Mindat. Jolyon has himself outed at least one dishonest dealer. It may help bring pressure to bear on a resolution.


Let's all be careful at whom we point our fingers at. If you don't know the full story from beginning to end and from all points of view from all parties involved; you may find that you are pointing in the wrong direction. We do not know the whole story. We can surmise all we want, but only those directly involved know the true circumstances of this situation. This "dealer" may not even be a Mindat member.

Russ
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Debbie Woolf




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PostPosted: Jul 14, 2011 19:12    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Hmm ... a bit of hypocrisy going on here, what's that saying I often see/hear 'caveat emptor'

Peter Megaw: If you don't let it be known publicly the ethics of some rotten apples in the cart then you let such practises taint the mineral community as a whole. Brushing these things under the carpet does not help anyones image/reputation.

John Veevaert: Yes what you did was theft, from what you state above you knew the mine had 'keep out' signs from previous visits, it was not your property, you took an opportunistic moment to your advantage for personal gain, that is the truth.

Jean Sendero: Well said !

I have been a victim of theft by the most conspicuous dealer on mindat, I complained & my pictures this dealer used where removed instantly, he did not even have the decency to contact me & apologize !

If no-one thinks this behaviour is shameful then I ask where are your morals !
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vic rzonca




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PostPosted: Jul 14, 2011 20:48    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

Hmmm. Ownership of the plunder from the earth? Corporate? Outlaw? Private? Universal? Legal? Temporal? I think the meeting of minds over this occurrence would be a prudent course as, Brian, rightfully suggests. I am reluctant to say anything, at the risk of offending any ethical notion, but I guess if the rights to the site were controlled, and product from the site was owned, looks like outlaw collecting to me. I'm sure I'm missing the details. I think there is a long history of such activity and so much natural history has been saved and stolen through this trespass, that the offense it is site specific. It always seems better not to fester,and the bodies involved might find equanimity. I have trespassed, please forgive me.
Hmmmm. The plunder.
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Peter Megaw
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PostPosted: Jul 14, 2011 21:30    Post subject: Re: Highgrading, the selling of stolen goods and turning a blind eye  

This with my moderator's hat on...I do not believe I suggested that the issue be ignored, merely that FMF is not interested in becoming a mineralogical wikileaks or "outing" site. Words like "theft" and "stolen" should not be tossed around lightly in any environment and their use engenders significant legal liability if the accusations cannot be substantiated. I would suggest "innocent until proven guilty" as a motto here.
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