Property Rights Man Loses Land Without Compensation Because Indians Consider it Sacred

By National Center for Public Pol... | July 7, 2008 | 8:21 PM EDT

(Editor's Note: The following is the 56th of 100 stories regarding government regulation from the book Shattered Dreams, written by the National Center for Public Policy Research. will publish an additional story each day.)

In 1990, Dale McKinnon began leasing (and later bought) Woodruff Butte, a pyramid-shaped plateau rising out of the Arizona desert. This parcel of land is a source of very high quality aggregate, a type of gravel used to make concrete. McKinnon purchased this property intending to use the aggregate in highway projects in which his company, Cholla Ready Mix, Inc., was a contractor.

Indians of the Zuni, Hopi, and Navajo Tribes made a claim on McKinnon's property. They have repeatedly urged the Arizona Department of Transportation (ADOT) to prevent McKinnon and Cholla from mining on what they allege is sacred and.

In 1998, McKinnon contracted with Vasco, Inc. to work on a federal highway. The Hopi Tribe sued McKinnon, the U.S. Department of Transportation and the ADOT, claiming that Woodruff Butte is sacred and that the government must obtain the tribe's permission to use the aggregate found on McKinnon's land. After filing the lawsuit, the Hope tribe withdrew it. According to Mountain States Legal Foundation, McKinnon's legal representative, McKinnon offered to protect sacred shrines. However, he could not reach a compromise with the tribe because tribal leaders would not list the specific areas they believe require protection.

Throughout the 1990s the ADOT modified its standard specifications for road and bridge construction in order to respect Native American religious concerns. In particular, the new regulations caused existing commercial source permits - which allowed McKinnon to use his aggregate in construction bids - to expire at the end of 1999. To get a new permit, the regulations required an environmental assessment of adverse impacts "on cultural or historic resources."

Even though McKinnon hired an environmental consultant who conducted the required assessment when he sought a new permit in 2000, the ADOT demanded that McKinnon's environmental consultant conduct a revised assessment that also considered historic preservation. After several further revisions, the final assessment stated that "continued mining... will have an adverse effect on historic properties, namely the butte itself."

In order to classify the property as historically valuable, the ADOT had earlier claimed that the property was eligible for the National Register of Historic Places (NRHP), which the National Park Service considers "the nation's official list of cultural resources worthy of preservation." By claiming that the land was eligible for the National Register, the ADOT was able to apply Section 106 of the National Historic Preservation Act to deny McKinnon's permit application. The ADOT justified its claim that the land was culturally and historically valuable by pointing to the butte's religious significance to the Indians. Consequently, it now restricts the butte's use solely to religious purposes rather than for its alleged historic value.

In June 2002, McKinnon filed suit in the Northern District Court of Arizona, alleging that the ADOT had unconstitutionally restricted McKinnon's use of his land. The ADOT's regulations violate prohibitions against the establishment of religion and the application of special laws, which deny his right to equal protection under the law. Although Woodruff Butte is not listed in the NRHP, the ADOT has restricted its use based on Indian claims to its religious significance. McKinnon's attorney, Stephen Gilmartin, asserts that the ADOT's regulations were "worded generally but specifically design[ed] to shut [McKinnon] down."

Sources: Mountain States Legal Foundation, Stephen Gilmartin, National Park Service

Copyright 2003, National Center for Public Policy Research