November 18, 2015
Bill Howell The Boston Tea party of 1773 was a protest against “taxation without representation.” The battles at Lexington and Concord were, in part, resistance to the “Intolerable Acts” of 1774. These were acts of the British Parliament which revoked the historic right of self-government in the Massachusetts Colony and placed that power in the hands of a governor appointed by and answerable only to His British Majesty. Mahatma Gandhi employed what he called polite insistence on the truth to win Indian independence from British hegemony. Gandhi’s tactics inspired civil rights and freedom movements around the world including the American civil rights movement of the 50′s and 60′s. The common thread in these popular movements is opposition to unjust and/or immoral power by a few on behalf of their larger community. Along their way, those who have dared to challenge the legitimacy of a centralized power have been punished and branded as “criminals” by those who wield this power. In San Juan County, Utah, the Bureau of Land Management issued a “decision” to close an area to unauthorized off road use. This area included a county claimed vehicular right-of-way. County Commissioner Phil Lyman and City Councilman, Monte Wells, have been convicted of trespass for having inspired a protest ride to the end of a pipeline laying within this vehicular right-of-way. Lyman and Wells have been vilified by federal prosecutors as “criminals.” Their punishment is pending. Their non-violent act differs in no significant respect from the acts of American patriots in the 1700′s, from Gandhi in the early part of the 20th Century, or from the acts of lunch counter sitters in the 50′s and 60′s. How so? one might ask. To answer this question, we need only consider, first, the extent of a state’s right to exercise sovereignty and jurisdiction over the lands within its borders and, second, the moral obligation of the United States to honor its contracts. As to a state’s right to exercise sovereignty and jurisdiction over the land within its borders, the U.S. Supreme Court, in 1845, said that under the Equal Footing Doctrine new states are entitled to exercise those powers over all of the land within their borders including the public lands with only two exceptions. New states may not tax the public lands and they may not interfere with their disposal by Congress. As to the obligation of contracts, the U.S. Supreme Court has said that “a grant is a contract executed” and that the granting party is “estopped by his own grant.” In the same tone, Alexander Hamilton said that when a government enters into a contract it “deposes its constitutional authority” and exchanges the character of legislator for that of “a moral agent with the same rights and obligations as an individual.” In 1866 Congress expressly “granted” by statute the right to construct highways over public lands not reserved for public purposes. In 1976 Congress presumes to have revoked the 1866 grant. Yet, in a just world, if the Court and Hamilton are correct, the right granted in 1866 is “a contract executed” and, therefore, irrevocable. This means that the states remain empowered under the grant to construct highways over unreserved public lands; and the right to construct highways certainly implies the right to use and to maintain them. This brings us back to the circumstances in San Juan County. Commissioner Lyman and Councilman Wells are asserting the sovereign territorial rights of the State of Utah which include the right of the state, under the irrevocable grant, to construct, use, and maintain highways over unreserved public lands. The public lands at issue in the San Juan case are unreserved. At a minimum, then, it is arguable that the federal position closing the vehicular right-of-way is as unjust and as immoral as the tyrannical “Intolerable Acts” issued against the colony of Massachusetts in 1774, the denial of independent sovereignty to the Indian sub-continent in the early years of the last century, and the denial of equality on the basis of race. In this light, the actions of Commissioner Lyman and Councilman Wells are as honorable and as patriotic as the acts of the Minutemen at Lexington and Concord, of Gandhi in India, and of civil rights marchers in the United States. Like those who have gone before them, Lyman and Wells and the other 300 people who participated in this protest have done nothing less than stand for the rights of the larger community of citizens of San Juan County and of the State of Utah as a whole. They stand against a modern-day tyranny that denies our territorial sovereignty as well as the solemn obligations of contract.
RS 2477: The More Fundamental Question
In October of this year (2015) the U.S. Supreme Court denied a petition from the State of Utah for a hearing of its demand for possession of title to a list of roads crossing public lands. The State asserts a claim to the roads under authority of Revised Statute 2477 which, in its entirety, reads “The right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted.” Congress presumes to have revoked and taken back this express grant by legislation passed in 1976.
On October 13, 2015 Utah Fox 13 News reported that the “fundamental question” asked by the Utah Attorney General’s Office was this: “Are they (these certain roads in the State) owned by the federal government? Or are they owned by the State under what is commonly known as ‘R.S. 2477,’ a federal law that granted ‘the right of way for the construction of highways over public lands, not reserved for public uses’”?
With due respect to the abilities of the Attorney General’s Office, there is a more “fundamental” question than the one reportedly asked. And, as the question asked is arguably not the “fundamental” RS 2477 question, it is not surprising that the nation’s highest court denied a hearing to the State’s petition.
The more “fundamental” RS 2477 question is this: “Does one sovereign have the right to strip from another sovereign that which the one has expressly granted to the other?”
This more “fundamental” question elevates the dispute from one in the nature of common proprietors contending over property to one of the relationship between two sovereigns contending over the exercise of sovereign power. Questions of sovereign power and its division between the federal and State governments are fundamental to the definition of our federal system. As such, they are among the highest order of duty for resolution by the United States Supreme Court.
If it is determined by the court that the State may be stripped of an expressly granted sovereign right to construct “highways” (ways of passage open to the public) over its unreserved public lands, then it is safe to say that there is not one vestige of independent sovereign State power that may be exercised in those places. In the instance of Utah, this exclusion of independent State sovereignty extends over some 67% of the State’s territory. In this case, it must then also be said that these lands are in no way part of the sovereign and jurisdictional State of Utah. And this being the case, it can in no way be said that the State of Utah has been admitted into the Union of States upon an equal footing with the original States as is its constitutional right. From this reasoning, it is clear that there is much more at stake within the RS 2477 question than title to a set of “highways” over our public lands. That which is at stake is statehood itself.
The Obligation of Congress
To Extinguish The Federal Title In All Public Lands
In A Nutshell
The nineteenth century Territory of Orleans roughly corresponds to the present day State of Louisiana. This territory was not ceded to the United States by one of the original States. It was acquired directly by the United States through purchase from France in 1803. By the Act of March 2,1805 (2 Stat. At L. 322, chap. 23), Congress provided that the inhabitants of the Territory of Orleans “shall be entitled to and enjoy all the rights, privileges, and advantages secured by the (Northwest Ordinance)….” Thus, the Territory of Orleans was placed “exactly in the position which it would have occupied had it been within the boundaries of the Untied States as a territory at the time the Constitution was framed” (Downes v. Bidwell, 182 U.S. 244, 1901).
And what was the “position” of the territories held by the United States “at the time the Constitution was formed?” That position was defined by four promises made by resolution of Congress in October 1780 for the benefit of every new State that would be erected out of those original territories. Those four promises remain binding and include: (1) The territories would be settled and formed into distinct republican States. (2) The new States erected therein would be admitted into the Union and possess the same rights of sovereignty, freedom and independence, as the other States. (3) The territorial lands would be granted and disposed of for the common benefit. (4) Disposal would be accomplished through regulations adopted by Congress for that purpose.
By the Act of Congress of March 2, 1805, these four congressional promises were extended to and became the entitlements of Louisiana. And as a matter of equity and constitutional uniformity, these four promises became the entitlement of every other new State established out of federal territories acquired directly by the United States from whatever source and by whatever means: “Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory” (Shively v. Bowlby, 152 U.S. 1, 1894). Federal territories acquired from sources other than the original States include the Louisiana Purchase, the Mexican Cession, the Oregon Territories, Alaska and the Florida Cession. This is to say that the promise of disposal of the federal territorial lands extends to every federal territory regardless of its origins. There is no allowance whatsoever for extended retention of these federal territorial lands in federal ownership, much less for their retention under permanent federal title.
The congressional promise to dispose of federal territorial lands was enshrined in the U.S. Constitution at Article IV, sec. 3, clause 2, the Property Clause. By this clause, Congress is empowered to “dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” And as to the powers delegated by “We the People” to the federal government in our Constitution, “It must have been the intention of those who gave these powers, to insure, so far as human prudence could insure, their beneficial execution” (McCulloch v. Maryland,17 U.S. 316, 1819).
Fulfillment of the promises made by Congress to the new States in its resolution of October 1780, including most prominently extinguishment of the federal title and disposal of the territorial lands, is essential to the constitutional equality between every new State and the original States: “Whenever the United States shall have fully executed these trusts, the municipal sovereignty of the new states will be complete, throughout their respective borders, and they, and the original states, will be upon an equal footing, in all respects whatever” (Pollard v. Hagan, 44 U.S. 212, 1845).
Considering RS 2477 in a Different Light September 23, 2015
by Bill Howell
In 1866 under Revised Statute 2477, Congress issued a general grant of right-of-way for the construction of highways (public roads) over unreserved public lands: “The right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted.” In 1976, with passage of the Federal Land Policy and Management Act (FLPMA), Congress presumes to have revoked that express grant. The following question is posed in response to this alleged congressional revocation: If Congress can revoke the express grant of right-of-way issued under RS 2477 might it also, at its discretion, revoke the school and institutional trust land grants set down in the several state enabling act compacts? The two grants differ only in their object. The trust land grant is one of fee title in particular and identified tracts of public land. The RS 2477 grant is not one of land itself but of a right to do a particular thing in a particular place. While the two grants differ as to their object, they are identical as to their legal foundation. Both grants were made by congressional statute. Both grants expressly identify the lands subject to the grant. Neither grant provided terms for revocation or termination. Few if any would argue that Congress might possess authority to revoke or terminate the trust land grant, but no one has contested the alleged revocation of the RS 2477 grant.
The U.S. Supreme Court has said that a grant “is a contract executed,” (Fletcher v. Peck, 10 U.S. 87, 1810, citing Blackstone). It is unlikely that a “contract executed” would be revocable. Therefore, if Congress believed that it could revoke the RS 2477 grant, it must also have believed that the statute was something less than a “contract executed.” But the plain words of the statute are that a “right-of-way” is “hereby granted.” The question then becomes this. How does one modify what by clear and plain words appears to be a “contract executed” such that it then appears to be something short of “executed” and, therefore, less than an actual grant?” Enter the notion of “perfection.”
It is now maintained that a prospective beneficiary under RS 2477 must actually construct a “highway” in order to “perfect” the grant. In legal terms, the word “perfect,” including its variants such as “perfection,” means “to complete, to finish, or to execute and render enforceable,” (Black’s Law Dictionary, 4th ed). Under this notion of “perfection,” no actual grant is completed, finished, or enforceable under the plain words of the statute alone. Rather, “perfection” means, paradoxically, that a grant issues only after a “highway” is actually constructed. But if RS 2477 requires that a prospective grantee actually construct a “highway” in order for a grant under RS 2477 to be “complete, finished and enforceable,” the same requirement for “perfection” must also apply to grantees under federal educational trust land grants. And yet, no one has suggested that trust land grants require “perfection” in order to establish the grantee’s claim to the authorized sections. The words of the trust land grant in the Utah enabling act, by way of illustration, are “That upon the admission of said State into the Union, sections numbered two, sixteen, thirty-two, and thirty-six in every township of said proposed State, …, are hereby granted to said State for the support of common schools, ….” It was only necessary that those particular sections be located by survey. Survey identifies the physical location of the granted tracts, but it does not establish the State’s claim to those tracts. The words of the grant alone establish the State’s claim. If the subject lands happened to lie within a particular federal land reservation, “in lieu” lands were to be taken. Federal reservations were not allowed to alter the quantum of land authorized under the grant and, thus, claimed by the grantee State. The operative words of the trust land grant are “are hereby granted.” The operative words of the RS 2477 grant are “is hereby granted.” If no further action or “perfection” was required of the trust land grantee in order to establish a “complete, finished, and enforceable” claim to the subject lands or lands “in lieu,” why do we accept the notion that further action or “perfection” is required of grantees under RS 2477?
Despite the equivalence of their statutory origins and the apparent functional equivalence of their operative words, the RS 2477 grant and the school trust land grant have been treated differently with the passage of FLPMA. As stated above, Congress presumes to have revoked the express and unequivocal grant issued under RS 2477. This act of Congress gives rise to another important question: “How can a plain and express grant be sophisticated into no actual grant at all but, rather, a revocable ‘invitation’ to future action on the part of prospective grantees? The answer to this question apparently lies in the words now being used to describe that which was otherwise, by a common reading of the statute, expressly granted.
The idea of “perfection” converts that which was, by a common reading of the plain words of the statute, an accomplished grant upon the instant of the statute’s passage, into an “offer” requiring subsequent action or “acceptance” on the part of another to become a complete, finished, and enforceable grant. By this reasoning, every “highway” constructed pursuant to RS 2477 is a separate and distinct “perfected” grant. But the plain words of the statute disprove the idea of a requirement for subsequent “perfection and a multitude of grants. The words of the statute are clear that a singular grant is issued (“the right-of-way”), and this singular grant is intended to be accomplished with finality upon passage of the statute by Congress (“is hereby granted”).
The idea that Congress intended to create a bifurcated process of “offer” and “acceptance” in the form of a contract under RS 2477 defies the plain language of the statute. As such, the notion of required subsequent “perfection” savors of legalistic sophistry. Had Congress intended to establish such a process, it is clear that it knew how to do it. The Homestead Act serves as case-in-point.
The Homestead Act established a process whereby prospective land claimants might demonstrate certain improvements to a defined tract of public land over a defined period of time. If the conditions set forth in the Act were met, a federal land patent would be granted to the claimant. By its nature, the Homestead Act made an “offer” subject to certain conditions while the prospective claimant demonstrated “acceptance”through his actions over the time and in the place prescribed. If and when the conditions of the “offer” were met, a land patent was granted. FLPMA revoked the Homestead Act. In so doing, it revoked only the “offer.” No federal grant or other non-federal right in the land was affected. The same cannot be said for Congress’s presumed revocation of the RS 2477 grant.
The legal sophistry of “perfecting” the RS 2477 grant by way of actual construction suggests that, like the Homestead Act, nothing passed upon enactment of the statute. This sophistry suggests that, like the Homestead Act, RS 2477 merely authorized a process with the actual grant taking place only after a particular highway was constructed and, thereby, demonstrating “acceptance.” Under this interpretation of the statute, its revocation, like that of the Homestead Act, would be nothing more than revocation of a process and not the revocation of any actual granted sovereign right in the unreserved public land. But RS 2477, in its spare nineteen words, did not initiate a process. For this reason, the statute did not require future action by a claimant in order to “perfect” the grant. As with the school and institutional trust land grants, the text of RS 2477 is the grant. As proof of this statement, it is well known and uncontested that highways were built across the West for more than a century following enactment of the statute with no further action being taken by Congress or by the federal land management agency; no further action, that is, until the words “offer” and “perfection” entered into the RS 2477 lexicon.
When Congress presumed under FLPMA to have revoked the RS 2477 grant, it presumed to have taken back that which was expressly granted. This is unacceptable. The grant of a sovereign does not take away from that sovereign any more than what was expressly granted but it does take away that which is expressly granted:
“All grants of the crown are to be strictly construed against the grantee, contrary to the usual policy of the law in the consideration of grants, and upon this just ground: that, the prerogatives and rights and emoluments of the crown being conferred upon it for great purposes, and for the public use, it shall not be intended that such prerogatives, rights, and emoluments are diminished by any grant, beyond what such grant, by necessary and unavoidable construction, shall take away.” Shively v. Bowlby, 152 U.S. 1, 1894, The Rebeckah, 1 C. Rob. Adm. 227, 230. “Many judgments of this court are to the same effect.” Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544-548; Martin v. Waddell, 16 Pet. 367, 411; Central Transp. Co. v. Pullman’s Palace-Car Co., 139 U.S. 24, 49, 11 S. Sup. Ct. 478.
The following quote is also precisely relevant to the RS 2477 question: “Nothing passes a perfect title to public lands, with the exception of a few cases, but a patent. The exceptions are, where Congress grants lands, in words of present grant,” (Wilcox v. Jackson, 13 Pet. 498, 516 (1839). If a “present grant” can pass “perfect title” in land, then certainly a “present grant” can also pass a particular right in land as well. By the words “is hereby granted,” RS 2477 was nothing if not a “present grant.” And if a granted “perfect title” in land cannot be revoked by the granting sovereign, then neither can a granted right in land be revoked.
From the analysis above, it would seem conclusive that an express grant of “right-of-way” to “construct highways” over “unreserved public lands” cannot be revoked as Congress presumes to have done under the Federal Land Management and Policy Act of 1976. Accordingly, any passage way over unreserved public lands that a State might either construct or claim as a public “highway” is a valid sovereign claim of the State under the “complete, finished, and enforceable” RS 2477 grant. Highways over unreserved public lands which are claimed by a State are, therefore, physical manifestations of independent State sovereignty. Maintenance and use of these highways are, therefore, actions subject to sovereign State regulation and State law. Violations of State laws associated with State highways must be adjudicated in State courts. Accordingly, any action by Congress or a federal land agency to alter or direct the construction or use of a claimed State “highway” is a direct challenge to State sovereignty.
A San Juan County, Utah, commissioner and one county resident have recently been convicted of violating a road closure decision issued by the Bureau of Land Management. The road at issue is claimed by the County, a subdivision of the sovereign State, as a public highway. Apparently the sole question entertained by the court was simply whether the agency’s closure directive was violated. But there is a much more fundamental question which, apparently, has not been raised or litigated. That question is simply this: Does Congress possess the authority to strip the States of a granted sovereign right to build and declare public highways as the public need requires upon unreserved public lands? This is a question of greater than local interest. It is a question that goes to the heart of independent State sovereignty and constitutional federalism:
“Clearly, Congress could exact of the new State the surrender of no attribute inherent in her character as a sovereign independent State, or indispensable to her equality with her sister States, necessarily implied and guarantied (sic) by the very nature of the Federal compact. Obviously, and it may be said primarily, among the incidents of that equality, is the right to make improvements in the rivers, water-courses, and highways, situated within the State.” Withers v. Buckley, 61 US 84, (1857).
Response to Congressman Bishop’s
“Public Land Initiative”
by Bill Howell
“What has been will be again, what has been done will be done again; there is nothing new under the sun.” Ecclesiastes 1:9-14. In evidence of this wisdom, a parallel may be drawn between the Boston Tea Party of December 1773 and the “Public Land Initiative” being promoted today by Congressmen Rob Bishop and Jason Chaffetz and which has been endorsed by Governor Gary Herbert. The common element between that historical event and the present “Initiative” is the attempt by a politically and geographically distant government to perpetuate absolute, centralized, and supreme political power at the expense of local and sovereign municipal self-governance. Consider the circumstance of the Boston Tea Party.
American patriots boarded a British merchant ship and cast 342 chests of tea overboard. The patriots, including Sam Adams who is often credited with organizing the Party, were, in part, protesting taxation by the British Parliament at the same time that the colonists were denied representation in that body, “taxation without representation.”
Parliament had reduced the tax on the tea to a pittance with the expectation that the colonists’ love of tea would overcome their resistance to it. But Parliament underestimated the colonists’ greater desire for justice and for equality with other members of the Empire. The colonists were not to be fooled. They understood that acceptance of the tax would be construed as acceptance of the unjust and degraded relationship they had with the British Empire. In the words of John Taylor, a close friend and confident of James Madison, the colonists recognized the “artifice” (ruse) of a minimal tax and refused to be caught on a “gilded hook“:
“The parliament closed the debate, by …, impos(ing) some trifling taxes …, as an entering wedge into the colonial claim of local supremacy, to be gradually driven up to the head. In that on tea, the ingenuity was used of attempting to establish a ruinous precedent, by conferring a pecuniary favour, in diminishing the price of the article in favour of the colonies. But the colonies, too wary to be caught by a gilded hook, detected, resisted and defeated the artifice.” Construction Construed, and Constitutions Indicated, by John Taylor, Richmond: Printed by Shepherd & Pollard, 1820, edited by Jon Roland 2002.
Colonial resistance to absolute, centralized, and supreme political power increased until revolution broke out. After seven years of brutal warfare, birthright sovereignty was vanquished in America and the people themselves became sovereign. Local self-governance within free and independent states, united only for certain and enumerated purposes under a national constitution, gave rise to the greatest nation and the greatest degree of personal freedom and prosperity that the world has ever known.
How does the Boston Tea Party correlate with the Public Land Initiative?
Under the “Initiative,” federal land management priorities would be adjusted. According to its sponsors, the “Initiative” would “strike a real balance between conservation and responsible development,” and it would “establish greater certainty about the way our public lands may be used.” But absolute, centralized, and complete federal management authority remains unaffected.
A list of “benefits” is offered in support of the “Initiative.” Listed benefits are regulatory certainty, revenue from multiple use management on some of the land, and responsible use of the land for both present and future generations.
This list of “benefits” is today’s “gilded hook.” Acceptance of the “Initiative” under the belief that acceptance is necessary to secure the listed benefits will be seen as tantamount to official state acceptance of continued federal ownership of our public lands as well as complete and supreme federal maritime and territorial jurisdiction over them. As crucial, official acceptance of the “Initiative” under the belief that acceptance is necessary to secure the listed “benefits” will be cited at some opportune time as “Exhibit A” in opposition to Utah’s constitutionally grounded demand for transfer of its public lands from federal to state ownership and governance.
Utahns must “detect” the “ingenuity” of this “Initiative” and “defeat the artifice” for its price is too high. Utahns must recognize that nothing is offered as “benefits” that we cannot achieve for ourselves once the federal forests and federal public lands become state forests and state public lands. If we are seduced into accepting this scheme, it will be asserted by opponents of public land transfer that we have forfeited our most valuable claim as a state. That claim is to our right of independent territorial sovereignty throughout the full extent of territory which was committed by Congress in 1894 to the purposes of this state under terms of our solemn state enabling act compact with the United States:
“What then is the extent of jurisdiction which a state possesses? We answer, without hesitation, the jurisdiction of a state is co-extensive with its territory; co-extensive with its legislative power.” U.S. v. Bevans, 16 U.S. 336, 1818.
As in the days of actual revolution against unjust dominion exercised by a politically and geographically distant government, those who stand firm in Utah’s demand for transfer of our public lands to state ownership and governance are dogged by some who outwardly oppose the demand and by others of weak conviction who would kill the state’s initiative either with neglect or with “faint praise.” Sam Adams addressed these kind in his time with eloquence:
“If we love wealth better than Liberty, the tranquility of servitude better than the animating contest of Freedom, go home from us in peace. We ask not your counsels or your arms. Crouch down and lick the hands that feed You. May your chains set lightly upon you, and may posterity forget Ye Where our Countrymen.”
“Initiative” sponsors either ignore or deny the clear constitutional and moral grounds for the state’s demand for transfer of our public lands to state ownership. They essentially assert that restructuring federal management priorities alone is a sufficient and just outcome for the state. But this outcome is neither sufficient nor just. It is nothing more than the cloaking of absolute and supreme federal maritime power over our public lands with a veneer of revocable beneficence. But it is not beneficence, revocable or otherwise, that lies at the root of the “Initiative.” That which lies at the root of the “Initiative” is a love of power and an unremitting resistance to its diminution:
“There is in the nature of government an impatience of control that disposes those invested with power to look with an evil eye upon all external attempts to restrain or direct its operations. This has its origin in the love of power.” Alexander Hamilton – The Federalist, 1787.
I fail to understand how anyone can at once profess to understand and swear allegiance to the formative and constitutionally based principles of this country, which are the bedrock of our liberty, and, at the same time, refuse the glorious opportunity now presented under Utah’s Transfer of Public Lands Act to be associated with reaffirmation of those principles.