RS 2477: The More Fundamental Question

RS 2477: The More Fundamental Question
P. Henry

October 2015

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.

 

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