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In under Revised StatuteCongress issued a general grant of right-of-way for the construction of highways public roads over unreserved public lands: 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 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 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 grant.

Federal reservations were not allowed to alter the quantum of land authorized under the grant and, thus, claimed by the grantee State.

Despite the equivalence of their statutory origins and the apparent functional equivalence of their operative words, the RS 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 This act of Congress gives rise to another important question: 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.

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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.

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If the conditions set forth in the Act were met, a federal land patent would be granted to the claimant. But RSin its spare nineteen words, did not initiate a process.

As with the school and institutional trust land grants, the text of RS is the grant. 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:.

Warren Bridge, 11 Pet. The following quote is also precisely relevant to the RS question: 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.

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. 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:. 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.

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Buckley, 61 US 84, 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: It is a question that goes to the heart of independent State sovereignty and constitutional federalism:

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