Congressman Richard Pombo, R-CA,scheduled a June 28 hearing in St. George to receive testimony on the issue of rural roads crossing public lands or what is otherwise known as the RS2477 road issue.
Revised Statute 2477 was adopted by Congress in 1866. The statute provides that "the right of way for construction of highways over public lands not reservedfor public uses is hereby granted." In 1976, Congress presumed to revoke this "granted light." Subsequently, federal land managers and self-appointed public land guardians have objected to certain state road claims. They say that these claimed roads were not "mechanically" constructed or that they were not constructed "before 1976," or that they "go nowhere," or that they are impassable to moderm passenger cars and therefore cannot be "highways" notwithstanding that in 1866 carrying places between water bodies for canoes were also termed "highways."
I suggest to Congressman Pombo that these objections to state road claims are both specious and irrelevant and that a radical redirection of the RS2477 discussion is in order. This redirection concentrates on three heretofore ignored considerations: the literal words of the statute; the nature of a grant made by a sovereign; and the retained rights of member States in the federal union. By the words of the statute it is clear that specific, physical roads were not granted. Rather, the "right' to "construct" roads, or "highways" was granted. We should therefore be debating whether or not the "right" to build roads remains in the State regardless of the action of Congress in 1976.
Opponents would argue that the "right" has been revoked by that same body which once declared it "hereby granted." But the U.S. Supreme Court has stated that "a grant, in its nature, amounts to an extinguishment of the right of the grantor," and also that a grant is "a contract executed." By these words, Congress may not take back that which it has granted away.
We turn now to the currently out-of-fashion notion of state's rights. The question here is whether a sovereign State has authority to build roads over unappropriated public lands within its borders irrespective of RS2477. To this point, the Supreme Court has said that when the United States accepts a cession of land as new, pre-statehood federal territory, "they (take) upon themselves the trust to hold the municipal eminent domain for the new states, to be established therein and to invest them with it to the same extent, in all respects that it was held by the states ceding the territories." The Court has also said that "to refuse to concede to (a state) sovereignty andjurisdiction over all the territory within her limits would be to deny that (the state) has been admitted into the Union on an equalfooting with the original states." By section 4 of its enabling act compact with the United States, Utah was admitted into the Union of States on an "equal footing" with the original states. Utah is, therefore, entitled to the exercise of municipal eminent domain even on public lands within its borders.
To deny Utah this sovereign authority is to deny the constitutional equality of this State vis a vis the original states and this, in turn, is a breach of solemn trust by the United States and a constitutional violation.
For the aforementioned reasons, and others for which there is insufficient space in this letter to discuss, it is fair to say that roads within a State, even on public lands, are a sovereign state not a federal issue. With this understanding, discussion of the RS2477 question before Mr. Pombo's congressional field hearing should be brief.