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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.
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. ” 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.But RS 2477, in its spare nineteen words, did not initiate a process. 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? 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.For this reason, the statute did not require future action by a claimant in order to “perfect” the grant. 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. 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.