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).