* Dirk Kempthorne has been appointed to serve as Secretary of the Interior,

and he is substituted as an appellee in the place of his predecessor, Gale Norton,

pursuant to Fed. R. App. P. 43(c)(2).

FILED

United States Court of Appeals

Tenth Circuit

May 20, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUNRISE VALLEY, LLC; WESTERN

ROCK PRODUCT, a Utah corporation

dba STAKER AND PARSON, 

Plaintiffs-Appellants,

v.

DIRK KEMPTHORNE,*

 in his

capacity as Secretary of the Interior;

BUREAU OF LAND

MANAGEMENT; UNITED STATES

OF AMERICA,

Defendants-Appellees.

No. 06-4188

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 2:05-CV-934-DB)

Blake S. Atkin (with William O. Kimball, Brennan S. Moss on the briefs), Salt

Lake City, Utah, for Plaintiffs-Appellants.

Andrea L. Berlowe, U.S. Department of Justice (with Sue Ellen Wooldridge,

Assistant Attorney General, William Lazarus, Elizabeth A. Peterson, U.S.

Department of Justice), Washington, D.C., for Defendants-Appellees.
-2-

Before HENRY, Chief Judge, BRISCOE, and HOLMES, Circuit Judges.

HENRY, Chief Judge.

In this quiet title action brought pursuant to the federal Quiet Title Act,

28 U.S.C. § 2409a, plaintiffs-appellants Sunrise Valley, LLC and Western Rock

Product (together, Western Rock), are appealing the order entered by the district

court dismissing their amended complaint under Fed. R. Civ. P. 12(b)(6) for

failure to state a claim upon which relief can be granted. Having considered the

decisions of the United States Supreme Court in Watt v. Western Nuclear, Inc.,

462 U.S. 36 (1983) and BedRoc Ltd., v. United States, 541 U.S. 176 (2004), we

conclude that the district court correctly determined that the “sand, gravel, and

rock” that is located on plaintiffs’ real property are “minerals” reserved to the

United States under the Stock-Raising Homestead Act of 1916 , 43 U.S.C. §§

291-302. Exercising jurisdiction under 28 U.S.C. § 1291, we therefore affirm. 

I. FACTUAL BACKGROUND

In 1925, pursuant to the Stock-Raising Homestead Act, Zera P.T. Hunt

homesteaded the property in southern Utah located under U.S. Patent No. 957390,

which underlies the property in question. The patent “except[ed] and reserv[ed] .

. . to the United States all the coal and other minerals in the lands so entered and

patented together with the right to prospect for, mine, and remove the same
-3-

pursuant to the provisions and limitations of the [Stock-Raising Homestead Act].” 

Aplts’ App. at 37. Of the property at issue covered by Mr. Hunt’s patent,

Western Rock Product owns about 240 acres, and Sunrise Valley owns the

balance.

“From 1974 to the present, the property owned by Western Rock has been

operated by its owners as an open pit sand and gravel removal operation.” Aplts’

Opening Br. at 5. As the district court explained, “Western Rock . . . continued to

exercise ownership over the property by operating an open pit sand and gravel

operation until 1999 when the United States first claimed an ownership interest in

the sand, gravel, and rock on Western Rock’s property.” Aplts’ App. at 7. 

“In 2003, Sunrise Valley, LLC, began purchasing property [in the same part

of southwestern Utah],” and it “began searching for available sand, gravel, and

rock.” Aplts’ Opening Br. at 10. It subsequently “discovered a sand, gravel, and

rock pit located . . . on part of the property on which it had options.” Id.

According to Western Rock, however, Sunrise Valley has been unable to remove

any sand, gravel, and rock from its property because the Bureau of Land

Management “claims ownership” over those “common” materials. Id. at 11. 
-4-

In its amended complaint, Western Rock requested that the district court

quiet title in its favor to all of the sand, gravel, and rock that is located on its real

property. Relying on the Supreme Court’s decision in Watt v. Western Nuclear,

Inc., 462 U.S. 36 (1983), defendants filed a motion to dismiss under Fed. R. Civ.

P. 12(b)(6), arguing that the United States owns the sand, gravel, and rock that is

located on plaintiffs’ property because those materials are “minerals” for purposes

of the reservation of rights under the SRHA. 

In determining that Western Rock failed to state a claim, the district court

observed:

In Watt v. Western Nuclear, 462 U.S. 36 (1983), the U.S. Supreme

Court unmistakably held that gravel constitutes a mineral reserved to

the United States in SRHA-patented lands. In Western Nuclear, the

defendant owned lands granted under an SRHA patent, which reserved

to the United States “all the coal and other minerals” in the land. See

id. at 39. The BLM ruled that the defendant committed unintentional

trespass by removing 43,000 cubic yards of gravel from its SRHApatented land. See id. at 40-41. The defendant contested the ruling,

arguing that gravel was not included within the reservation of minerals

to the United States under the SRHA. Id. The U.S. Supreme Court

rejected the defendant’s argument, holding that “gravel is a mineral

reserved to the United States in lands patented under the SRHA,” id. at

60, because gravel (1) is mineral in character; (2) can be removed from

the soil; (3) can be used for commercial purposes; and (4) there is no

reason to suppose gravel was intended to be included in the surface

estate. Western Nuclear, 462 U.S. at 53-54. The Court explained that

the congressional purpose of reserving mineral rights under the SRHA

was “to facilitate the concurrent development of both surface and

subsurface resources.” Id. at 42. Because “ranching and farming do

not ordinarily entail the extraction of mineral substances,” id. at 54, and

because Congress understood that surface lands were patented “chiefly

. . . for grazing and raising forage crops . . . for the support of a

family,” id. at 38, the Court found that it was best able to honor the
-5-

congressional purpose of the SRHA by construing the mineral

reservation to encompass gravel. Id. at 47.

This case is controlled by [Western Nuclear]. As in Western

Nuclear, Plaintiffs acquired title to land covered by an SRHA patent,

which reserved to the United States “all the coal and other minerals”

in their land. 

Aplts’ App. at 7-8.

The district court also rejected plaintiffs’ argument “that Western Nuclear

is not applicable because it was essentially overruled by the concurring opinion in

[BedRoc].” Id. at 9. As the court explained: 

At issue in Bedroc was land patented under the Pittman Underground

Water Act of 1919, a statute pertaining only to Nevada that reserved

“all valuable minerals” to the United States on lands patented

thereunder. Id. at 176. The Bedroc Court held that the reservation of

minerals under the Pittman Act did not reserve sand and gravel to the

United States since sand and gravel were not “valuable mineral[s].” On

this basis, Plaintiffs argue that the continued viability of Western

Nuclear is “highly questionable.”

Plaintiffs’ interpretation of Bedroc is misguided. Although the

petitioners in BedRoc asked the Supreme Court to overrule Western

Nuclear, the plurality refused this request, stating specifically that “we

decline to overrule our recent [Western Nuclear] precedent.” Bedroc,

541 U.S. at 183. In his concurrence, while Justice Thomas criticized

the holding in Western Nuclear, he specifically declined to overrule

Western Nuclear “[b]ecause the Government identifies significant

reliance interests that would be upset” by doing so. Id. at 189. The

dissent also refused to overrule Western Nuclear, stating that although

“the majority in Western Nuclear may have misinterpreted Congress’

intent,” id. at 192, there does not exist adequate justification for

disturbing a decision that has been settled law for two decades. Id.

Thus, the Bedroc Court unanimously decided not to overrule Western

Nuclear.

 
-6-

Aplts. App. at 9-10 (footnote omitted) (emphasis in original). The district court

granted the motion to dismiss and Western Rock timely appealed.

II. DISCUSSION

Western Rock challenges the district court’s decision, arguing that (1) the

property’s rock, sand, and gravel are not minerals under the Stock-Raising

Homestead Act; (2) instead, the Court’s decision in BedRoc Ltd., v. United States,

541 U.S. 176 (2004), interpreting “valuable minerals” under another statute is 

applicable to this case, and would exclude rock, sand, and gravel from the

government’s mineral reservations; and (3) unlike in BedRoc, no intervening

contract rights would be disturbed from such exclusion. For the reasons set forth

below, we hold that BedRoc’s reach is not so expansive, and that, under Western

Nuclear’s undisturbed holding, the government’s mineral reservations include

rock, sand, and gravel, and that Western Rock’s amended complaint is legally

insufficient to state a claim for relief under the Quiet Title Act.

A. Standard of review

“Because the sufficiency of a complaint is a question of law, we review de

novo the district court’s grant of a motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6), applying the same standards as the district court.”

Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006). Those standards require

that “we must accept as true all well-pleaded facts, and construe all reasonable

allegations in the light most favorable to the plaintiff.” United States v. Colo.
-7-

Supreme Court, 87 F.3d 1161, 1164 (10th Cir. 1996). “The court’s function on a

Rule 12(b)(6) motion is not to weigh potential evidence that the parties might

present at trial, but to assess whether the plaintiff’s complaint alone is legally

sufficient to state a claim for which relief may be granted.” Sutton v. Utah State

Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quotation

omitted). 

B. The Stock-Raising Homestead Act of 1916

 All land patents issued by the United States under the Stock-Raising

Homestead Act are subject to an express reservation of mineral rights in favor of

the United States. The Stock-Raising Homestead Act, “the last of the great

homestead acts, provided for the settlement of homesteads on lands the surface of

which was ‘chiefly valuable for grazing and raising crops’ and ‘not susceptible of

irrigation from any known source of water supply.’” Western Nuclear, 462 U.S.

at 37 (quoting 43 U.S.C. § 292 (1976 ed.)). Congress’s purpose was to bifurcate

the surface and mineral rights to facilitate concurrent development. Id. at 50. It

would, thus, have made little sense to give minerals to stock raisers. 

C. Western Rock’s Arguments

Western Rock raises three interrelated arguments to support reversing the

district court: (1) the property’s rock, sand, and gravel are not minerals under the

Stock-Raising Homestead Act; (2) the Court’s decision in BedRoc is applicable to

this case, which would exclude rock, sand, and gravel from the government’s
-8-

mineral reservations; and (3) that, unlike in Bedroc, no intervening contract rights

would be disturbed from such exclusion. We examine each argument in turn.

1. The Stock-Raising Homestead Act includes sand, gravel, and rock

First, Western Rock argues that, unlike in Western Nuclear, the sand,

gravel, and rock on the relevant property is not found in a deposit that is

“separable” from the surface estate. The Western Nuclear Court has already

reversed this circuit on a similar issue, so we take extra precaution here. 

As noted by the district court, the Supreme Court developed a four-part test

in Western Nuclear to aid in the determination of what the Stock-Raising

Homestead Act mineral reservation encompasses: 

we interpret the mineral reservation in the Act to include substances [a]

that are mineral in character (i.e., that are inorganic), [b] that can be

removed from the soil, [c] that can be used for commercial purposes,

and [d] that there is no reason to suppose were intended to be included

in the surface estate.

462 U.S. at 53. 

First, there is no debate that the rock, sand, and gravel at issue are

inorganic substances and are minerals. Western Rock challenges the

removablility of the sand and gravel: “Where common sand and gravel are

pervasive as in this case, it can hardly be considered removable from the soil.” 

Aplts’ Opening Br. at 24. While Western Rock is correct that the gravel deposit

at issue in Western Nuclear “was an alluvial deposit covered with 12-18 inches of

topsoil overburden,” id. at 24; see also Western Nuclear, 462 U.S. at 40, the
-9-

physical characteristics of the deposit played no direct role in the Court’s analysis

in Western Nuclear. In fact, the Court devoted only a single line in its opinion to

the removability issue. See Western Nuclear, 462 U.S. at 55 (“What is significant

is that gravel can be taken from the soil and used for commercial purposes.”). 

Similarly, while the BedRoc plurality noted that the sand and gravel at issue in

that case “were plentiful and visible on the surface of the . . . land,” BedRoc, 541

U.S. at 180, the plurality did not rely on that fact to distinguish Western Nuclear. 

Consequently, because it is undisputed that the sand, gravel, and rock at issue in

this case “can be taken from the soil and used for commercial purposes,” Western

Nuclear, 462 U.S. at 55, we do not see any basis for distinguishing Western

Nuclear. 

Western Rock also challenges the commercial viability of sand, gravel, and

rock at the time the Government made its mineral reservation. According to

plaintiffs, this case should therefore be governed by BedRoc, not Western

Nuclear. As plaintiffs explain in their opening brief:

In this case, Landowners have demonstrated that gravel was not

commercially viable in 1925 when the patent was issued. Because the

subject property is in the same semiarid, undeveloped and sparsely

populated desert area as the Nevada property at issue in Bedroc, the

Court’s conclusion that “sand and gravel were . . . commercially

worthless in 1919 [to prospectors] due to Nevada’s sparse population

and lack of development” is facially applicable here. Bedroc, at 184.

Aplts’ Opening Br. at 25.
-10-

The Secretary of the Interior once took a similar view: “Deposits of gravel

and sand, suitable for mixing with cement for concrete construction, but having

no peculiar property or characteristic giving them special value . . . , do not

render the land in which they are found mineral in character within the meaning

of the mining laws, or bar entry under the homestead laws, notwithstanding the

land may be more valuable on account of such deposits than for agricultural

purposes.” Zimmerman v. Brunson, 39 Pub. Lands Dec. 310, 310 (1910); see also

BedRoc, 541 U.S. at 184 n.6 (“Indeed, as petitioners aptly point out, ‘[e]ven the

most enterprising settler could not have sold sand in the desert.’”) (quoting Brief

for Petitioners 6).

But, the Court in Western Nuclear wrestled with the identical argument,

and rejected it:

Respondent errs in relying on Zimmerman as evidence that Congress

could not have intended the term “minerals” to encompass gravel.

Although the legal understanding of a word prevailing at the time it is

included in a statute is a relevant factor to consider in determining the

meaning that the legislature ascribed to the word, we do not see how

any inference can be drawn that the 64th Congress understood the term

“minerals” to exclude gravel. It is most unlikely that many members of

Congress were aware of the ruling in Zimmerman, which was never

tested in the courts and was not mentioned in the reports or debates on

the SRHA. Even if Congress had been aware of Zimmerman, there

would be no reason to conclude that it approved of the Secretary's

ruling in that case rather than this Court’s opinion in [Northern Pacific

Railway Co. v. Soderberg, 188 U.S. 526, 536 (1903)] which adopted a

broad definition of the term “mineral” and quoted with approval a

statement that gravel is a mineral.
-11-

462 U.S. at 45-46 (internal citations omitted); see Soderberg, 188 U.S. at 536

(quoting with approval a statement in an English case that “everything except the

mere surface which is used for agricultural purposes; anything beyond that which

is useful for any purpose whatever, whether it is gravel, marble, fire clay, or the

like, comes within the word ‘mineral’ when there is a reservation of the mines

and minerals from a grant of land.” (quoting Midland Ry. Co. v. Checkley, (1867)

L.R. 4 Eq. 19, 25 (Court of Chancery)).

We cannot agree that BedRoc is the applicable Supreme Court precedent. 

The BedRoc plurality looked back in time to 1919 in order to determine whether

the sand and gravel at issue in that case were “valuable minerals” for purposes of

the Pittman Act, which applied only to water development lands in Nevada. See

41 Stat. 293 (granting permit to “drill[] or otherwise explore for water beneath the

surface of . . . nonmineral, nontimbered public lands . . . in the State of

Nevada”); BedRoc, 541 U.S. at 183-84. The BedRoc Court refused to extend the

rationale of Western Nuclear to the Pittman Act because the Court found that the

Pittman Act’s plain meaning would not support it. The Court emphasized

Congress’s addition of the modifier “valuable,” in holding that sand and gravel

were not “valuable minerals” reserved by the Pittman Act. Id. at 186-87.

According to the plurality, this retrospective inquiry into the question of

commercial value was required by the different statutory language in the Pittman

Act, id., and the plurality explicitly acknowledged that such an inquiry is not
-12-

required under Western Nuclear’s interpretation of the Stock-Raising Homestead

Act, id. at 183 n.5 (noting that “Western Nuclear defined ‘minerals’ . . . as

substances . . . that ‘have separate value’ from the soil,” and that this definition

involves only a “minimal inquiry into whether a substance might at some point

have separate value from the soil and might, in the abstract, be susceptible of

commercial use”) (emphasis added). Consequently, even if the sand, gravel, and

rock located on plaintiffs’ property could not have been realistically used for

commercial purposes in 1925, that fact is not determinative of our analysis under

the Stock-Raising Homestead Act. Instead, for purposes of the Stock-Raising

Homestead Act, we examine only whether the materials “might, in the abstract, be

susceptible of commercial use,” id., and we have no difficulty answering that

inquiry in the affirmative. See New W. Materials LLC v. Interior Bd. of Land

Appeals, 398 F. Supp. 2d 438, 447 (E.D. Va. 2005) (finding that the Small Tract

Act of 1938, which contains identical wording as found in the Stock-Raising

Homestead Act, is governed by Western Nuclear, and that “mineral deposits”

included sand and gravel), aff’d, 216 Fed. App’x 385 (4th Cir. 2007), cert.

denied, 128 S. Ct. 863 (2008). 

Finally, Western Rock wisely does not argue that sand, gravel, and rock

were intended to be included in ths surface estate. As in Western Nuclear, 

If we were to interpret the [Stock-Raising Homestead Act] to convey

gravel deposits to the farmers and stockmen who made entries under the

Act, we would in effect be saying that Congress intended to make the
-13-

exploitation of such deposits dependent solely upon the initiative of

persons whose interests were known to lie elsewhere. In resolving the

ambiguity in the language of the [Act], we decline to construe that

language so as to produce a result at odds with the purposes underlying

the statute. Instead, we interpret the language of the statute in a way

that will further Congress’ overriding objective of facilitating the

concurrent development of surface and subsurface resources.

462 U.S. at 56. Although we expand our focus to include rock and sand here, the

analysis is the same. There is no reason to suppose that rock, sand, and gravel

were meant to be included in the surface estate (intended for livestock grazing),

for that would hinder the concurrent development of surface and subsurface

resources. See also New W. Materials, 398 F. Supp. 2d at 449 (“Just as Congress

would not have expected the ranchers and farmers who received grants pursuant

to the [Stock-Raising Homestead Act] to exploit the subsurface estate, Congress

likewise could not have expected the homeowners or small business owners of

five acre plots to exploit the subsurface estates sold or leased pursuant to the

[Small Tract Act].”).

2. Application of Supreme Court precedent

Western Rock’s second argument, that the Supreme Court’s reasoning in

BedRoc applies to this case, is closely intertwined with the above analysis. As

indicated, we agree with the district court that this case is controlled by Western

Nuclear. 

As the district court recognized, the BedRoc plurality held that Western

Nuclear’s expansive interpretation of the United States’s mineral reservation
1

 We acknowledge that Justice Thomas, concurring in the judgment, noted that he

“believe[d] that mineral reservations pursuant to both the Pittman Act and the 

[Stock-Raising Homestead Act] do not include sand and gravel.” 541 U.S. at 188

(Thomas, J., concurring in the judgment). However, Justice Thomas felt

constrained by the doctrine of stare decisis: “Although the Court in Western

Nuclear incorrectly applied its definition of ‘minerals’ to include sand and gravel,

the Court is typically reluctant to overrule decisions involving statute

interpretation because ‘stare decisis concerns are at their acme in cases involving

property and contract rights.’” Id. at 189 (quoting State Oil Co. v. Khan, 522

U.S. 3, 20 (1997)).

-14-

under the Stock-Raising Homestead Act did not apply to cases arising under the

Pittman Act given the materially different statutory language in the latter act. See

BedRoc, 541 U.S. at 183-84 (stating that Congress “textually narrowed” the scope

of the term “minerals” in the Pittman Act by using the modifier “valuable,” and

that “the term ‘valuable’ makes clear that Congress did not intend to include sand

and gravel in the Pittman Act’s mineral reservation”). As explicitly set forth in

the opinions of the BedRoc plurality, the concurrence, and the dissent, however,

every member of the Court declined to overrule Western Nuclear. Id. at 183, 189,

191-92.1

As a result, because this case is governed by the Stock-Raising Homestead

Act, we are bound to apply the Court’s decision in Western Nuclear, not BedRoc. 

The government’s mineral reservation in this case includes sand, gravel, and rock. 

Moreover, while plaintiffs have made a valiant attempt to distinguish Western
2

 But Western Rock argues that, if we apply BedRoc, we need not worry about

disturbing any existing contract rights, because the only interested parties here are

itself and the Government. Because we hold that Western Nuclear applies to our

analysis, we need not address this argument. 

-15-

Nuclear, their arguments essentially challenge the correctness of Western

Nuclear’s reasoning, and thus are better suited for a petition for certiorari.2

 

III. CONCLUSION

The judgment of the district court is AFFIRMED.