The Crushed Stone Industry Grows Up:
A History of Mineral Material Trespass
On Public Lands in Central Arizona

by W. Scott Donaldson
Mining Attorney
Phoenix, Arizona

OFR 02-18
May, 2002

Arizona Department of Mines and Mineral Resources
1502 West Washington
Phoenix, Arizona 85007
(602) 255-3795
www.admmr.state.az.us
© January, 2001, by W. Scott Donaldson

Table of Contents

I.

Introduction 3

II.

Population Increase and Crushed Stone Production 5

III.

Central Arizona Land Ownership 7

IV.

Federal Mining Laws 7

V.

Case Histories 11
A.
B.
C.
D.
E.
F.
G.

Buffalo Ridge 13
Turkey Tracks 13
Red Mountain 14
Harris 15
Big Knob 15
Mineral Butte 16
Cherokee Rock 16

VI.

Conclusion 18

VII.

Appendices 20
A.
B.

Maricopa County and State of Arizona Population Growth 20
Crushed Stone Production 21

2

I. Introduction

The State of Arizona experienced considerable population growth throughout the
last three decades. Some of the state's mineral industries kept pace with the population
growth and its accompanying residential and commercial construction. Crushed stone is
one such mineral product.
Crushed stone is the product resulting from the artificial crushing of rocks,
boulders, or large cobblestones, substantially all faces of which have resulted from the
crushing operation. The term is applied to irregular fragments of rock crushed or ground
to smaller sizes after quarrying.1 Crushed stone is a natural decorating medium, well
suited for use in an arid environment. Large amounts of crushed stone are used as
landscaping material in residential, commercial and public projects. Many colors and
size gradations are used in diverse landscapes. It is commonplace in Arizona to see red,
gold, and other colored crushed landscaping stone around homes, business and roads.
Crushed stone is also widely used in the construction industry. Uses include
concrete/asphalt aggregate, sub grade materials for road construction, and riprap for
erosion control along drainages.
Maricopa County and the Phoenix metropolitan area encompass some of the most
dramatic growth of population in the nation. The arid climate and nearby sources of
mineral material make them an attractive market area for the crushed stone industry.
Mineral deposits suitable for the production of crushed stone are often found on state or
federal lands because the State of Arizona and the United States of America own a
majority of the land in the area. A large portion of the public lands in Maricopa County is
held by the United States through the Department of the Interior, Bureau of Land
Management (BLM).
BLM generally considers crushed stone sources a saleable mineral, which must be
purchased from BLM. Some producers focusing on the Phoenix metropolitan area have
searched for ways to avoid purchasing these minerals, thus avoiding payments to the
BLM. One of the more common ways is to claim that the mineral material is “locatable”
instead of saleable. A locatable mineral can be removed from mining claims without
payment to the United States. Successfully claiming a crushed stone source as locatable
instead of saleable has been attractive to private industry.
BLM’s position that crushed stone is saleable and, in many cases, the industry's
position that it is locatable were the source of considerable conflict through the 1980s and
1990s.
The early 1980s saw an increase in the number of crushed stone producers and
efforts by some of those producers to assert the locatable nature of their sources. During
that time, BLM proved unready to directly challenge those producers and attempted to
1

A Dictionary of Mining, Mineral, and Related Terms,s.v. “crushed stone”.

3

negotiate settlements or simply allowed production to continue. Some of the cases rested
in limbo for years. However, both private industry and BLM gained experience and
sophistication until the producers accepted the saleable material classification, either
voluntarily or involuntarily, or operations were halted through litigation.
The sequence of cases is representative of Maricopa County’s recent economic
and social history. The number of crushed stone producers blossomed in the 1980s, and
most operated against the law, according to BLM. Although the industry’s production has
continued to grow alongside our growing population, the producers were either out of
business or quietly purchasing their mineral material by the early 1990s.
Paul Buff, Senior Mineral Specialist, Arizona State Office, BLM, and participant
in the cases, offered the following observations:
"Arizona in the mid 1980s still held, for some people, the old Wild West
dream of striking it rich, which began with the discovery of gold at Sutter's Mill
in 1848 California. Except in modern-day Arizona the gold changed from the
precious metal to construction and landscaping materials (common variety
minerals), almost as, if not more, valuable on a per ton of material excavated than
the rock that held the glistening metal mined in Nevada, the present gold rush
state. The cast of characters seemingly remained the same -- the crusty old
prospectors, claim jumpers, promoters, marshals/government agents and lawyers,
both good and bad. There were a few instances, in the late 1980s and within 60
miles of the federal courthouse in Phoenix, where people were gunned down and
killed over disputes of ownership of mining claims. A couple of times there were
instances of dueling front-end loaders rather than six shooters. The more civil
disputants took their cases to court or negotiated settlements.”
The crushed stone producers who continue in business today are those who
cooperated with BLM and chose not to litigate with the federal government. This article
studies the lengthy conflict between BLM and the crushed stone industry in Maricopa
County and the Phoenix metropolitan area that resulted in today's more stable situation.

4

II. Population Increase and Crushed Stone Production
The mineral trespass cases described in this article occurred in Maricopa County
or sales from the producers generally went into metropolitan Phoenix, its satellite cities
and other surrounding communities.
The population growth in Maricopa County and the State of Arizona is well
documented. Maricopa County grew from a population of 870,000 in 1966 to 2,634,000
in 1996. Arizona grew from 1,614,000 to 4,462,300 during the same years.2 Maricopa’s
percentage of the total Arizona population grew from 53% to 59% during that time. It
was and is an attractive market area to any retailer, including sellers of crushed stone.
The population of Maricopa County could reach 3,329,550 people and that of the
State of Arizona 5,553,825 people by 2005.3 The county’s portion of the state’s
population appears to be stable. It will continue to consume large quantities of crushed
stone in its landscaping and building.
Comparing expanding population and crushed stone production shows an
increasing demand for the mineral product as Arizona grew through the 1970s, 1980s and
1990s. Transportation costs were and are a major factor in crushed rock production.
Maricopa County encompassed such a large portion of Arizona’s growth that it was
advantageous for crushed stone producers to locate their operations close to the Phoenix
metropolitan area.
The number of entities attempting to produce crushed stone from sources close to
the Phoenix market increased as the price per ton for crushed stone increased with the
demand.4,. In opposition to this factor, population growth increasingly put the producers
in greater conflict with the market they tried to serve.

5

2

Arizona Yearbook: A Guide to Government in the Grand Canyon State 1997-1998
Id.
4
Appendix B.
5
Arizona Department of Mines and Mineral Resources
3

5

Maricopa County and Arizona Population Growth

Population (millions)

6
5
4
3
2
1
0
*
66 968 970 972 974 976 978 980 982 984 986 988 990 992 994 996 998
00
19
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
20
Year

Maricopa County Population

Arizona Population

12
10
8
6
4
2
0

19
66
19
69
19
72
19
75
19
78
19
81
19
84
19
87
19
90
19
93
19
96
19
99

Production - Tons (millions)

Arizona Crushed Stone Production

Year

Arizona’s share of crushed stone production from BLM lands throughout the United
States has grown along with in-state production and the state’s population. Arizona’s
share of stone produced from all BLM lands was 2.4% in 1990. The figure grew to 44.4%
in 1997 and 15.9% in 1999.6

6

Public Land Statistics, 1999, et al, United States Government Printing Office.

6

III. Maricopa County Land Ownership
Arizona’s most populous county contains relatively little private land. Maricopa
County’s land ownership status is 7:
U.S. Forest Service
U.S. Bureau of Land Management
Indian Reservation
State of Arizona
Individual or Corporate
Other Public Lands

11%
41%
5%
11%
31%
1%

The paucity of private land has pushed the search for sources of crushed stone onto
public lands. BLM-controlled lands proved attractive to producers due to their
availability and relatively low operating costs under the federal mining laws.
IV. Federal Mining Laws
Federal minerals can be acquired three different ways: (1) location of mining
claim, (2) sale, and (3) lease. The locatable and saleable minerals are pertinent to this
article.
Title 30, United States Code, Mineral Lands and Mining, contains the federal
mining laws. Title 43, Code of Federal Regulations, Public Lands, contains the principal
regulations relating to mining on federal lands.
Locatable minerals include any valuable mineral deposit which is not saleable or
leasable and is locatable under the Mining Law of 18728, as amended. The term also
includes uncommon varieties of sand, stone and other building materials. Saleable
minerals include common varieties of sand, stone, gravel, clay and other mineral
materials. The Mineral Materials Act of 19479, as amended, governs exploitation of
saleable minerals on BLM and other federal lands.
The differences between locatable and saleable minerals, which are important to
the crushed stone industry, are based on cost and operations. Locatable minerals can be
removed from a valid mining claim without a unit payment to the government. Their
removal is an entitlement, which the government cannot prevent without complex
administrative or judicial proceedings. A mining claim is a grant from the United States
to the claimant of exclusive right of possession but exclusive possession of the surface is
limited to mining purposes.10 BLM can only regulate surface operations so as to prevent

7

Arizona Yearbook: A Guide to Government in the Grand Canyon State 1997-1998.
30 U.S.C. § 22, et seq.
9
30 U.S.C. § 601, et seq.
10
U.S. v. Etcheverry, 230 F.2d 193 (9th Cir. 1956).
8

7

unnecessary and undue degradation of the lands pursuant to the Federal Land Policy and
Management Act of October 21, 1976.11
Saleable minerals must be purchased at an appraised value from BLM. The
contract terms are unwieldy12 and issuance of the purchase contract itself is a
discretionary BLM decision.13
The federal mining laws regarding locatable minerals state:
“Except as otherwise provided, all valuable mineral deposits in lands
belonging to the United States, both surveyed and unsurveyed, shall be
free and open to exploration . . .” 14
“Valuable mineral deposit” is defined in the Code of Federal Regulations as follows:
“Whatever is recognized as a mineral by the standard authorities, whether
metallic or other substance, when found in public lands in quantity and
quality sufficient to render the lands valuable on account thereof, is treated
as coming with the purview of the mining laws.” 15
An entity seeking to appropriate locatable minerals locates a mining claim over
the mineral body.
“A mining claim is a parcel of land containing precious metal in its
soil or rock. A location is the act of appropriating such parcel, according
to certain established rules. . . .” 16
Location procedures involves five basic steps:
“1. discovery of a valuable mineral deposit;
2. posting the claim;
3. discovery work, if required;
4. marking the claim boundaries; and
5. recording location notice with county recorder and BLM” 17
The term “discovery” is at the heart of the conflict between BLM and the crushed
stone industry in central Arizona. Efforts to define the term stretch back over more than a
century:

11

43 U.S.C. § 1701, et seq.
43 C.F.R. S 3600, et seq.
13
30 U.S.C. § 601.
14
30 U.S.C. § 22.
15
43 C.F.R. § 3812.1.
16
St. Louis Smelting Company v. Kemp, 104 US 636 (1881).
17
2 American Law of Mining, Second Edition, § 33.02[1], p. 33-12.
12

8

“Two rules form the core of the law of discovery. The prudent man
rule provides that when the evidence of mineralization is such that ’a
person of ordinary prudence would be justified in the further expenditure
of his labor and means, with a reasonable prospect of success, in
developing a valuable mine’ a discovery has been made. The marketability
rule requires that a mineral deposit be of such value that, given its
accessibility, the costs of its development, its proximity to a market, and
the demand for the mineral, the deposit can be mined and sold at a profit.”
18

The history of locatable minerals and saleable minerals is intertwined. Prior to
passage of the Materials Act19 deposits of common sand, stone, gravel and clay were
unavailable under any system. Uncommon deposits were locatable. After the Materials
Act, those common materials could be purchased. Certain types of ordinary material,
even with commercial value, have never been locatable under the mining laws, including
fill, sub-base, ballast, riprap and barrow.20
On July 23, 1955, an amendment to the Materials Act was passed known as the
Common Varieties Act21. The Common Varieties Act codified the prior law that common
varieties of certain building materials are not locatable and provided an exception for
“uncommon varieties”:
“No deposit of common varieties of sand, stone, gravel, pumice,
pumicite, or cinders and no deposit of petrified wood shall be deemed a
valuable mineral deposit within the meaning of the mining laws of the
United States so as to give effective validity to any mining claim hereafter
located under such mining laws. . . .
“’Common varieties’ as used in sections 601, 603, and 611 to 615
of this title does not include deposits of such materials which are valuable
because the deposit has some property giving it distinct and special value.”
...
The uncommon varieties reference in the Common Varieties Act and the effective
date of that statute form the heart of the BLM – crushed stone industry cases described
herein. Generally the producer was seeking a way to categorize minerals as locatable
rather than saleable. The advantages of the classification are discussed above. If the
mining claim pre-dated the Common Varieties Act, the producer could argue that the
minerals were locatable at the time of location and presently. The BLM would then apply
the prudent man and marketability tests to determine validity.

18

1 American Law of Mining, Second Edition, § 30.05[6], p. 30-16.
Supra.
20
United States v. Webb, 132 IBLA 152, 183 (1995).
21
30 U.S.C. § 611.
19

9

Alternatively and sometimes simultaneously, the producer would claim his
minerals were an uncommon variety that could still be located. The courts developed a
five-step test for defining uncommon varieties22:
“. . . . the Secretary, . . . .has defined guidelines for distinguishing between
common varieties and uncommon varieties of building stone. The
guidelines, as we discern them, are (1) there must be a comparison of the
mineral deposit in question with other deposits of such minerals generally;
(2) the mineral deposit in question must have a unique property; (3) the
unique property must give the deposit a distinct and special value; (4) if
the special value is for uses to which ordinary varieties of the mineral are
put, the deposit must have some distinct and special value for such use;
and (5) the distinct and special value must be reflected by the higher price
which the material commands in the market place.”
BLM, crushed stone producers and the federal courts wrestled with the prudent
man, the marketability and the uncommon varieties tests throughout Maricopa County
and parts of adjoining Pinal County. The complexity of the issues caused many of the
cases to carry on for years, sometimes stretching into decades.
Proving or disproving valid discovery prior to 1955 or testing an uncommon
variety of mineral is a challenging test for a private litigant or federal agency. The
attempt attracts battling attorneys, mining engineers, geologists, economists and
neighborhood groups. As the following cases show, neither BLM nor the crushed stone
industry can be certain of the outcome in such complex litigation.

22

McClarty v. Secretary of the Interior, 404 F2d 907, 908 (9th Cir. 1969).

10

V. Case Histories
BLM divides the State of Arizona into areas called Field Offices. The Phoenix
Field Office (PFO), or its predecessors, had jurisdiction over the cases discussed herein.
Seven cases exemplify the BLM – crushed stone industry disputes over mineral materials
in central Arizona. They are described in order of production commencing: (1) Buffalo
Ridge, (2) Turkey Tracks, (3) Red Mountain, (4) Harris, (5) Big Knob, (6) Mineral Butte,
and (7) Cherokee Rock.
Central Arizona Mineral Material Disputes

The author participated as counsel, either directly or indirectly and on various
sides, in all of the cited cases.
The United States Department of the Interior (DOI) has full responsibility to
manage the public lands, including mineral lands, and it has broad authority to issue
regulations concerning them.23 DOI’s rules and regulations, if reasonable and not
inconsistent with valid law, have the force and effect of law 24 and are noticed
23
24

Best v. Humboldt Placer Mining Co., 371 US 334 (1963).
US v. Nelson, 199 F 474.

11

judicially.25 The Secretary of the Interior fulfills a judicial role with regard to the public
lands 26:
“The Secretary of the Interior is the supervising agent of the government to do
justice to all claimants and preserve the rights of the people of the United States . .
. . The statutes in placing the whole business of the Department under the
supervision of the Secretary, invest him with authority to review, reverse, amend,
annul or affirm all proceedings in the Department. . . . by direct orders or by
review on appeals.”
BLM may, at any time on its own initiative, question the character of the land in a mining
location or question the uses to which such land is being put, subject to due process of
law.27
Determination of the validity of a mining claim is either a question of law or a
question of fact. BLM makes administrative decisions on questions of law where the
issue is questions of record such as land status at time of location. Contest actions
involving administrative hearings are held only where questions of fact, such as mineral
discovery, must be resolved. Mineral contest and appeals procedures are found in Title 43
of the Code of Federal Regulations.28
BLM initiates a potential challenge to mining claims by conducting a validity
examination. A validity examination investigates all aspects of the mining claims,
including the existence or non-existence of mineral discovery. If the validity examination
confirms mineral discovery and other aspects of the mining claims, BLM allows the
claims to continue. A determination that discovery does not exist results in BLM
challenging the mining claims.
BLM can challenge mining claims administratively within the United States
Department of the Interior or through litigation in the federal courts, but not both
simultaneously.29 The cases cited involve all of these methods: administrative action,
litigation and a combination of the two.
BLM challenges include notices of mineral trespass, which can involve the
Mining Law of 1872, the Materials Act of 1947, the Common Varieties Act of 1955, the
Building Stone Act of 189230, other parts of a mining claim’s validity or a combination of
all of them. Litigation initiated by BLM can involve the same issues and usually include
temporary restraining orders and preliminary injunctions requesting immediate
termination of the mining operations.

25

Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 US 301 (1903).
Knight v. United States Land Association, 142 US 161, 178 (1891).
27
Best, supra at 336.
28
43 C.F.R. Subpart A, Subpart E.
29
2 American Law of Mining, Second Edition, § 50.02; p. 50-5.
30
30 U.S.C. § 161.
26

12

A. Buffalo Ridge
Buffalo Ridge is the only case cited here in which the mine owners proved that
their minerals were locatable. The claims were located in Section 27, Township 4 North,
Range 3 East (“T. 4 N., R. 3 E.”), Gila and Salt River Baseline and Meridian
(“G.&S.R.B.&M.”), Maricopa County, in the early 1950s and operations continue to the
present. Buffalo Ridge is situated south of the intersection of Beardsley Road and 20th
Street within the City of Phoenix. The mining operation and its decomposed granite
product are readily accessible to trucks hauling to various fill, rip rap and sub base
projects.
Operations progressed at Buffalo Ridge until the owners filed a mineral patent
application 31 on March 6, 1974.32 The application was rejected by BLM on October 27,
1980 and the rejection was appealed33 by the owners. The remand on appeal resulted in a
settlement agreement between the owners and BLM. Settlement included issuance of
patent 34, based on pre-1955 location and production, on part of the mining claims.
Operations continue today on the patented land.
B. Turkey Tracks
The Turkey Track mining claims were located in Section 22, T. 4 N., R. 3 E.,
G.&S.R.B.&M., Maricopa County. The site was immediately north of the intersection of
Beardsley Road and 20th Street, within the limits of the City of Phoenix. The claims
encompassed approximately 200 acres. The Turkey Track granite was principally used
for fill, rip rap and sub base.
These 200 acres produced an incredible history of administrative proceedings and
federal and state court litigation. Mining operations allegedly began in the late 1940s and
extended through the early 1990s. The earliest claims were located in the 1950s, prior to
the Common Varieties Act35. The first BLM decision occurred on September 12, 195636.
The final federal court litigation commenced on August 16, 199137 and permanently
halted any mining operations on the property. Through the years the operators’ futilely
alleged every conceivable argument in defense of the claims: pre-1955 discovery,
uncommon varieties, adverse possession38 and metalliferous minerals discovery.
The half-century history of the Turkey Track claims included at least 30 separate
BLM actions, instigated either by BLM or the operator. Those agency actions included
mineral contests, mineral reports, formal decisions, settlement agreements and mineral

31

30 U.S.C. § 22 and 29.
PFO A 7967.
33
Frank Melluzzo, 71 IBLA 178 (March 10, 1983).
34
BLM Arizona State Office Patent No. 02-88-0001.
35
Supra.
36
PFO Contest A-10009.
37
United States of America vs. Patsy A. Brings, et al., CIV 91-1332-PHX-PGR (D. Arizona)
38
30 U.S.C. § 38.
32

13

patent applications. The claims were also directly at issue in six federal court, three state
court and two bankruptcy proceedings.
C. Red Mountain
Red Mountain Mining Company, or its predecessors, (Red Mountain) started
producing landscaping material from mining claims in 1971. The mining claims were
located on December 11, 1961. This case was the largest volume BLM mineral trespass
in the United States until recently surpassed by a State of Nevada case.39
The mining claims were located in the S½S½ of Section 24, Township 2 North,
Range 6 East, Gila & Salt River Baseline & Meridian, Maricopa County. The operation’s
proximity to Power Road and the Superstition Freeway, inside the City of Mesa limits,
gave it easy access to the Phoenix metropolitan area.
Red Mountain’s operation immediately came to the attention of BLM. Although
BLM quickly concluded Red Mountain’s minerals were saleable and not locatable, Red
Mountain continued to operate under the auspices of its mining claims without
interference until the first notice of trespass was issued on September 9, 1983.
The trespass notice precipitated a lengthy and convoluted series of maneuvers by
Red Mountain and BLM. New placer mining claims were located over the old lode
mining claims late in 1983. Then, 1984 saw a mineral patent application 40, a BLM
decision voiding the placers, location of a second set of placer claims, including
allegations of adverse possession, and a second trespass notice 41. 1985 included an
administrative appeal affirming the void decision 42 and a second BLM decision voiding
the second placer claims. Discussions and negotiations continued for years. Generally,
Red Mountain asserted the special and unique qualities of its materials, claiming they
were an uncommon variety and locatable under the Common Varieties Act.
BLM completed a validity examination on February 18, 1992, which confirmed
the original BLM opinion: Red Mountain was mining and processing a saleable material,
and the company did not have mineral discovery on its mining claims. Red Mountain
finally acceded to BLM’s demands and entered into a settlement agreement in November,
1993. Red Mountain continues in operation today under a series of mineral material sales
contracts issued pursuant to the agreement. The contracts include payments to BLM for
both ongoing production and production considered to have been in trespass. Payments
also include interest on the trespass value.

39

Robert L. Mendenhall, 127 IBLA 73 (1993).
PFO Mineral Patent Application A-19094.
41
PFO Number AZ 020-4-296.
42
Red Mountain Mining Co., et al, 85 IBLA 23 (1985).
40

14

D. Harris
The Harris case differs from the others in that the land at issue is split-estate; the
operator owns the surface estate and the United States, through BLM, owns the mineral
estate. Harris Granite Company (Harris) initiated operations in 1986 on Lot 3, Section 31,
T. 5 N., R. 2 E., G.&S.R.B.&M., Maricopa County. Mining claims were located over the
federal mineral estate. The land is near 67th Avenue and Jomax Road, City of Peoria.
On July 24, 1986 Harris entered into a mineral material sales contract with the
BLM 43 for the sale of 72,000 tons of granite from the land at $.54 per ton. Payments
were made on the contract through early 1987. Through the course of the next eight years
operations continued sporadically, payments to BLM quickly ceased, BLM issued several
trespass notices and the parties negotiated or entered into two separate settlement
agreements. The situation was not resolved until BLM sued Harris in federal district court
in 1995.44 Operations permanently ceased and BLM obtained a monetary judgment
against Harris, which was eventually paid off.
E. Big Knob
Big Knob Mining, Inc. (Big Knob) commenced operations on mining claims in
1986 on Section 1, T. 7 S., R. 2 E., G.&S.R.B.&M., Pinal County. The site was close to
Arizona State Highways 84 and 347 and U.S. Interstate 8, approximately 20 miles west
of the city limits of Casa Grande.
Big Knob excavated and processed colored granite for landscaping material. This
land is also split-estate. The State of Arizona owns the surface while the United States
owns the mineral estate. The state did not object to the operation and neither did the
rancher-lessee once agreement was reached to protect certain ranch improvements.
However, BLM reacted quickly. The agency proceeded against Big Knob in
United States district court 45 early in 1987. As did other producers, Big Knob claimed its
granite was an uncommon variety while BLM asserted it was a common variety and
subject to the Materials Act46. The Honorable Roger G. Strand denied the government’s
request for a preliminary injunction by deciding the granite was a common variety but the
balance of hardships did not favor the United States in an order dated May 23, 1987.
A notice of trespass was then sent to Big Knob on July 23, 1987.47 The parties
resolved their differences by entering into a settlement agreement on October 16, 1989.
The agreement provided for Big Knob’s continued operations and payment of both a
trespass and ongoing production amount. The trespass amount was paid off and
operations continue under a series of mineral material sales contracts.
43

PFO Number AZA-22276.
United States of America v. Jerry D. Harris, et al, CIV-95-1181-PHX-RGS (D. Arizona).
45
United States of America vs. Big Knob Mining, Inc., et al, CIV 87-607 PHX RGS (D. Arizona).
46
supra.
47
PFO Number A – 22929.
44

15

F. Mineral Butte
The Mineral Butte mining claims were located, probably for their copper
potential, in May of 1955 in the S½ of Section 36, T. 3 S., R. 7 E., G.&S.R.B.&M., Pinal
County. The claims were situated approximately 10 miles west of the Hunt Highway
(State Highway 87), between the cities of Mesa and Florence.
A notice of intent to mine gold was filed with BLM on August 8, 1985.
Operations started, and BLM quickly concluded the principal product was crushed
granite for use as landscaping material. BLM estimated the operator had removed and/or
stockpiled granite material worth $2,700,000.00 when the agency initiated its
enforcement actions.
BLM sued the operator in federal court. The complaint was filed August 29, 1986,
and temporary orders halting the mining operations were issued.48 The temporary orders
and later injunction halted mining operations.
The operator simultaneously claimed it was mining for metalliferous minerals and
the granite was a by-product, the granite was an uncommon variety and a pre-1955
market existed for the granite. Neither BLM nor the Honorable Paul G. Rosenblatt agreed
with those contentions.
BLM then administratively challenged the validity of the mining claims49. The
administrative contest was dismissed by agreement of BLM and the claims’ owners on
May 3, 1989. The agreement was reached as a result of a pending land exchange and
included permanent cessation of mining operations.
G. Cherokee Rock
Cherokee Rock is the final and most sophisticated BLM enforcement action cited
in this article. The operator’s claims to legitimacy were probably the most precarious.
The mining claims were located in the early and middle 1980s in the SE¼NW¼
and the W½SW¼NE¼ of Section 5, T. 6 N., R. 3 W., G.&S.R.B.&M., Maricopa County.
The site was located on split-estate land immediately north of the intersection of State
Highways 74 and 60. It provided easy access to the Phoenix metropolitan area. The State
of Arizona owns the surface and the United States owns the mineral estate.
ASLD approved a plan of operations on April 2, 1990.50 BLM allowed two small
mineral materials sales contracts51 through the remainder of 1990. Partial payments were
made on the contracts.

48

United States vs. Floyd R. Bleak, et al, CIV86-1434 PHX PGR (D. Arizona).
United States vs. Irma I. Rodney, et al, PFO Contest Number A 22096.
50
ASLD Plan # 23-97485.
51
PFO AZA 24547.
49

16

A series of non-compliance letters, meetings and other forms of negotiations then
occurred between BLM and the operator, stretching into 1992. The operator alleged that
its minerals were an uncommon variety and therefore locatable. A trespass notice was
issued by BLM on February 21, 1992 and the surface plan expired on April 1, 1992.
The operator and BLM could not resolve their differences on whether the minerals
were saleable or locatable, and BLM initiated litigation.52 On March 12, 1993 the United
States sought and received a Prejudgment Writ of Entry, Attachment and Sequestration
against three corporate and nine individual defendants. The Writ attached all property and
income from property in which the defendants had a substantial non-exempt interest. It
was a heavy blow against the individuals and companies operating the Cherokee Rock
site, a blow that permanently halted operations. This was the first time the 1990 Federal
Debt Collection Procedures Act 53 was used against a mineral trespass. The Harris case
was the second such action, and the Red Mountain case would have been third but for the
pre-litigation settlement.
The litigation was resolved but the mining claims still exist. In November of
1994, a series of stipulated settlements were executed that provided for the payment of
$126,000.00 to BLM. The stipulated payments have not been completed and negotiations
over collection continue to date. Some of the individual defendants paid BLM lesser
sums before their assets were released.

52
53

United States v. Sunwalker Development, et al, CIV No. 930484-PHX-RGS (D. Arizona).
28 U.S.C. § 3001, et seq.

17

VI. Conclusion
BLM’s last major trespass action in the Phoenix metropolitan area occurred seven
years ago. Since the Cherokee Rock litigation, several factors have encouraged producers
to quietly buy their source mineral material as a saleable mineral rather than assert the
locatable argument. PFO is currently managing nine mineral material sales contracts.
A major factor is the cost in time and money of litigating with the United States
government in a situation similar to that in which the Cherokee Rock operators found
themselves. The potential costs and rewards of litigation must be weighed when BLM
generally sells mineral materials for little more than a dollar per ton.54 Penciling through
the pros and cons of litigation leads one to the conclusion obviously reached by most of
the crushed stone industry using BLM lands: it is less expensive and safer to simply buy
the mineral material from BLM.
Michael A. Johns, the United States Government’s trial attorney 55 in these cases,
offered the following comment:
“Your conclusions from these events are correct. Several of these trespass cases
involved lands set aside for parks, subject to valid existing rights. In each of these
cases, the producers would have been well advised to purchase the material or
move their operations, rather than litigate. My first contact with mining was on
our family’s gold placer claim in the Agua Fria River just below Rock Springs
where I panned considerable ’color’ as a boy. Like most public land litigation,
mining cases present a fascinating look at American history, sociology, politics,
economics and law. The tenacity of some miners is illuminated in a passage from
United States v. Northern Pacific Ry. Co., 1 F.2d 53, 57 (D. Montana 1924),
where the Court noted: ’It is human experience that a claim, once made and
esteemed as a property of hope, is often after a fashion clung to when all persons,
but the owner reluctant to abandon, can perceive nothing to justify.’ The crushed
rock industry has continued to thrive while complying with BLM’s requirements.
BLM’s challenge is to ensure viable sources of material for this vibrant industry
to meet the demands of our growing population.”
After Cherokee Rock, BLM reconsidered its strategy regarding mineral material
sales and initiated a planning element. One result of the reconsideration was development
of mineral material guidelines for the Phoenix metropolitan area.56 The guidelines were
designed to resolve seven issues, issues that originated in the half-century of conflict
described herein:
1) meeting public demand for sales through existing program procedures, 2)
meeting public demand for free use through program guidelines, 3) addressing
54

PFO Arizona Statewide Mineral Commodity Market Study and Analysis, 1998.
First Assistant U.S. Attorney Michael A. Johns: This comment is Mr. Johns’ personal comment and not
an official statement of the U.S. Department of Justice.
56
PFO Metropolitan Phoenix Mineral Materials Program Guidelines, November, 1994.
55

18

concerns of nearby residents, 4) resolving conflicting resource uses, 5)
maximizing interagency coordination, 6) reducing unauthorized use, and 7)
improving production verification.57
Some elements within BLM have attempted to initiate a mineral materials
resources study for the metropolitan Phoenix area. However, this effort has not been
funded.
Paul Buff, BLM Senior Mineral Specialist, presented the following further
observations:
“Many of the people, illegally removing the material, viewed their mining
claims as property from which they could remove what they wished, in spite of
almost 50 years of laws and legal decisions to the contrary. The law could be
misinterpreted and/or misrepresented by claimants, promoters and unscrupulous
lawyers to mean that sand and gravel or crushed granite could be mined from a
claim legally. Some investors and miners were sold a bill of goods by these
people and had no way to recoup their losses other than to mine in trespass. Some
miners, eager to garner riches and get into the market, listened to what they
wanted to hear and failed to perform due diligence. Some miners misinterpreted
answers given by government employees. The view that you could mine your
claim for common variety minerals was eventually changed by the efforts of a
small handful of government employees and scrupulous private attorneys."
Another event impacting the crushed stone industry occurred recently when BLM
proposed new regulations for the sale of mineral materials.58 The proposed regulations
corrected many of the deficiencies in the current regulations that the industry found
objectionable. BLM proposes to amend its mineral materials regulations by adding or
amending provisions on the inspection of operations, production verification, contract
renewal, procedures for cancellation, bonding, and appeals. The proposed rule also
addresses the rights of purchasers and permittees versus subsequent users of the same
land.
The history of litigation and modernization of the federal regulations maps the
future for crushed stone producers from BLM lands in central Arizona. Contravening
BLM’s classification of crushed stone sources as saleable is fraught with risks and heavy
costs.

57
58

Id., page 1.
Federal Register 65, no. 179 (September 14, 2000): 55863-55880.

19

VII. Appendices
A. Maricopa County and State of Arizona Population Growth
Year

Maricopa
County
Population

Arizona
Population

1966
1967
1968
1969
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000

870,000
890,000
914,000
946,000
971,228
1,026,000
1,087,200
1,156,700
1,217,400
1,253,900
1,280,000
1,329,800
1,388,900
1,456,800
1,509,175
1,530,700
1,582,100
1,612,100
1,701,300
1,837,956
1,903,900
1,998,700
2,055,400
2,166,500
2,122,101
2,179,975
2,233,700
2,291,200
2,355,900
2,551,765
2,634,625
2,740,975
2,845,000
2,968,025
3,096,625

1,614,000
1,646,000
1,682,000
1,737,000
1,775,399
1,896,000
2,009,000
2,125,000
2,224,000
2,286,000
2,348,000
2,427,000
2,518,000
2,639,000
2,716,546
2,760,400
2,833,100
2,880,100
3,014,600
3,181,400
3,302,300
3,452,600
3,551,500
3,654,700
3,665,228
3,767,000
3,858,825
3,958,875
4,071,650
4,307,150
4,462,300
4,628,500
4,801,400
4,980,275
5,168,950

59

59

Arizona Yearbook: A Guide to Government in the Grand Canyon State 1997-1998.
Department of Economic Security, 1997-2000.

20

B. Crushed Stone Production
Year
1966
1967
1968
1969
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000

Crushed Stone –
Short Tons
2,271,000
1,910,000
3,293,000
2,827,000
3,511,000
2,873,000
4,688,000
4,265,000
4,932,000
3,404,000
4,147,000
5,329,000
5,306,000
5,769,000
6,205,000
6,315,000
5,200,000
4,775,000
5,200,000
5,929,000
5,600,000
7,712,000
7,408,000
6,649,000
5,300,000
7,060,000
5,500,000
7,088,000
5,478,000
6,084,000
7,495,000
8,256,000
8,906,000
9,931,000
10,141,000

Value -Dollars
4,091,000
3,491,000
6,239,000
5,812,000
7,094,000
5,848,000
6,018,000
9,469,000
11,479,000
11,030,000
13,921,000
16,367,000
17,689,000
21,401,000
24,780,000
26,263,000
22,200,000
24,079,000
27,300,000
23,111,000
25,100,000
33,999,000
33,000,000
28,552,000
13,500,000
32,842,000
26,300,000
36,823,000
25,000,000
32,600,000
40,600,000
44,000,000
44,800,000
54,100,000
56,600,000

60

60

Arizona Department of Mines and Mineral Resources.

21

Unit Value –
Dollars Per Ton
1.80
1.83
1.89
2.06
2.02
2.04
1.71
2.22
2.33
3.24
3.36
3.07
3.33
3.71
3.99
4.16
4.27
5.04
5.25
3.90
4.48
4.41
4.46
4.29
2.55
4.65
4.78
5.20
4.56
5.36
5.42
5.33
5.03
5.45
5.48